Exhibit 10(TT)
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LOAN PURCHASE AGREEMENT
DATED AS OF
FEBRUARY 7, 1996
BETWEEN
SOUTH BOSTON SAVINGS BANK
AND
BLACKROCK CAPITAL FINANCE L.P.
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS ....................................................... 1
ARTICLE II
PURCHASE AND SALE OF THE LOANS .................................... 9
Section 2.1. Purchase and Sale of Assets ......................... 9
Section 2.2. Closing ............................................. 9
Section 2.3. Closing Date ........................................ 9
Section 2.4. Transfer and Recordation Taxes; Responsibility
for Recording ....................................... 10
Section 2.5. Closing Expenses .................................... 10
Section 2.6. Post-Closing Deliveries ............................. 11
Section 2.7. Escrows ............................................. 11
Section 2.8. Delivery of Certain Documents; Filing and Recording . 11
Section 2.9. Limited Purpose of Purchase Price Percentages ....... 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER ....................... 13
Section 3.1. Authority; Binding on Purchaser; Enforceability ..... 13
Section 3.2. Conflict with Existing Laws or Contracts ............ 13
Section 3.3. Legal Action Against Purchaser ...................... 13
Section 3.4. Bankruptcy or Debt of Purchaser; Financial Condition 14
Section 3.5. Decision to Purchase; Limited Representations and
Warranties; Economic Risk; No Reliance .............. 14
Section 3.6. Reserved ............................................ 14
Section 3.7. Compliance with Requirements ........................ 15
Section 3.8. Due Diligence ....................................... 15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER .......................... 16
Section 4.1. Representations and Warranties by Seller ............ 16
Section 4.2. Representations and Warranties by Seller as to
each Loan ........................................... 17
ARTICLE V
COVENANTS OF SELLER AND PURCHASER ................................. 24
Section 5.1. Payment of Deposit .................................. 24
Section 5.2. Investment and Disposition of Deposit ............... 24
Section 5.3. Permits, Authorizations, Etc. ....................... 24
Section 5.4. Inspection of Files ................................. 24
Section 5.5. Termination of Servicing by Seller .................. 24
Section 5.6. Certain Payments .................................... 24
Section 5.7. Litigation Cooperation .............................. 25
Section 5.8. Covenants of Seller ................................. 26
Section 5.9. Confidentiality ..................................... 27
Section 5.10. Preliminary Schedule; Closing Schedule ............. 27
Section 5.11. Environmental Reports .............................. 27
Section 5.12. Changes to Asset Files ............................. 27
ARTICLE VI
CONDITIONS PRECEDENT .............................................. 28
Section 6.1. Conditions to Obligation of Purchaser ............... 28
Section 6.2. Conditions to Obligation of Seller .................. 28
ARTICLE VII
ADDITIONAL AGREEMENTS ............................................. 30
Section 7.1. Cooperation ......................................... 30
Section 7.2. Conformity to Law ................................... 30
Section 7.3. Inspection by Seller ................................ 30
Section 7.4. Foreclosure of Real Property by Seller Prior
to Closing .......................................... 31
Section 7.5. Condemnation ........................................ 31
Section 7.6. Certain Use Restrictions ............................ 31
Section 7.7. Environmental Reports ............................... 31
Section 7.8. Reserved ............................................ 31
Section 7.9. Seller's Right to Remove an Asset ................... 32
Section 7.10. Post Closing Conduct ................................ 32
ARTICLE VIII
TERMINATION ....................................................... 33
Section 8.1. Termination ......................................... 33
Section 8.2. Effect of Termination ............................... 33
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION
AND SPECIAL REMEDIES .............................................. 36
Section 9.1. Survival ............................................ 36
Section 9.2. Seller's Indemnification Covenants .................. 36
Section 9.3. Special Remedies for Seller's Breach of Certain
Representations and Warranties Regarding the Assets . 36
Section 9.4. Purchaser's Indemnification Covenants ............... 37
Section 9.5. Purchaser's Rights to Special Remedies; Procedures,
Time Limitations and Certain Other Matters .......... 37
Section 9.6. Cooperation ......................................... 42
Section 9.7. Subrogation ......................................... 42
Section 9.8. Third Party Claims .................................. 42
Section 9.9. Remedy .............................................. 43
ARTICLE X
NOTICES ........................................................... 44
Section 10.1. Notices ............................................ 44
ARTICLE XI
MISCELLANEOUS PROVISIONS .......................................... 46
Section 11.1. Severability ....................................... 46
Section 11.2. Amendment .......................................... 46
Section 11.3. Waiver ............................................. 46
Section 11.4. Headings ........................................... 46
Section 11.5. Construction ....................................... 46
Section 11.6. Assignment ......................................... 46
Section 11.7. Prior Understandings; Integrated Agreement ......... 47
Section 11.8. Counterparts ....................................... 47
Section 11.9. Survival ........................................... 47
Section 11.10. Governing Law ...................................... 47
Section 11.11. Jurisdiction; Venue ................................ 47
Section 11.12. No Third Party Beneficiaries ....................... 48
Section 11.13. Waiver of Trial by Jury ............................ 48
SCHEDULES
Schedule A. Asset Schedule
Schedule B. Cross-Collateralized Loan Schedule
Schedule C. Repurchase/Special Purchase Price Percentages for
Certain Assets
Schedule 2.1. Servicing Agreement Exceptions
Schedule 4.2. Limitations on Representations and Warranties by Seller
as to Each Loan
Schedule 4.2.(e) Seller's Right to Sell
Schedule 4.2.(f) Modifications
Schedule 4.2.(g) Additional Advances
Schedule 4.2.(h) Cross-Collateralization
Schedule 4.2.(i) Participation
Schedule 4.2.(o) Title Insurance
Schedule 4.2.(p) Real Estate Taxes; Water and Sewer Charges
Schedule 4.2.(s) Ground Leases
Schedule 4.2.(u) Bankruptcy or Debt of Borrowers; Financial Condition
Schedule 5.8.(b) Servicing of the Loans
Schedule 7.7. Description of Environmental Reports
LOAN PURCHASE AGREEMENT
THIS AGREEMENT is entered into as of the 7th day of February,
1996, by and between BlackRock Capital Finance L.P., a Delaware limited
partnership ("Purchaser"), and South Boston Savings Bank (the "Seller").
W I T N E S S E T H
WHEREAS, Seller has certain rights, title and interest in and
to certain Loans that Seller wishes to sell to Purchaser in accordance with this
Agreement;
WHEREAS, Purchaser desires to purchase from Seller its rights,
title and interest in and to the Loans in accordance with this Agreement; and
NOW, THEREFORE, in consideration of the mutual premises and
the representations, warranties, covenants and agreements herein set forth and
other valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Seller and Purchaser agree, intending to be legally bound hereby,
as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated below:
"Additional Advances" shall mean, with respect to any Loan,
any additions to the principal balance thereof arising from additional advances
required to be made to the Borrower pursuant to the Loan Documents after the
Closing Date as set forth on Schedule 4.2(g).
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with the specified
Person. For purposes of this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock, by contract or otherwise.
"Agreement" means this Loan Purchase Agreement, including all
Schedules hereto, as the same may be amended, supplemented, restated or modified
as provided herein.
"Asset" means any Loan and the related Note, Mortgage,
Security Agreement and, to the extent assignable, any other related Collateral
Property but excluding any related servicing agreements.
"Asset File" means that certain file for each Loan made
available by Seller for review by Purchaser, including any amendments,
supplements, corrections or modifications to such file up through the Closing
Date hereof in possession of Seller.
"Asset Schedule" means the schedule identifying the Loans that
is attached hereto as Schedule A and sets forth the following information
concerning each Loan, as applicable:
(a) loan number;
(b) control number;
(c) street address of each primary related Mortgage Property;
(d) name of customer as it appears on Seller's loan servicing
records;
(e) stated maturity date (without regard to changes arising
from the Loan Modification Program);
(f) unpaid principal balance of each Loan as of the close of
business on January 31, 1996;
(g) annual interest rate charged by Seller as of January 31,
1996;
(h) stated annual interest rate on the originally executed
Note;
(i) the amount of principal and interest payable monthly in
respect of each Loan;
(j) paid-through date;
(k) the lien priority of the related Mortgage and assignment
of leases;
(l) whether the Note is recourse (R), nonrecourse (NR), or
partial recourse (PR) to the Borrower;
(m) the amount of any related Escrow; and
(n) the Purchase Price Percentage for such Loan.
"Borrower" means the obligor indicated on a Note.
"Business Day" means any day other than a Saturday, Sunday or
day on which banks in Boston, Massachusetts are authorized or obligated by law
to be closed.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U. S. C. {S}{S} 9601 and 9657 et seq., as
amended.
"Closing" has the meaning given that term in Section 2.2.
"Closing Date" means the date of Closing, which shall be (a)
the earlier of (i) May 14, 1996, (ii) the date which is 14 days (or such earlier
period designated by Purchaser in writing to Seller, but in no event less than
five Business Days) after the date on which Purchaser has received by facsimile
or overnight delivery written notice that the stockholders of Boston Bancorp
have approved the Merger (but in no event earlier than March 31, 1996 without
the consent of Purchaser) or (b) such other date upon which the parties may
mutually agree in writing.
"Closing Schedule" means the schedule to be furnished by
Seller pursuant to Section 5.10 setting forth for each Loan the following
information:
(a) loan number;
(b) control number;
(c) street address of each primary related Mortgaged Property;
(d) name of each customer as it appears on Seller's loan
servicing records;
(e) stated maturity date;
(f) unpaid principal balance of each Loan as of the opening of
business on the Closing Date;
(g) the annual interest rate charged by the Seller as of
January 31, 1996;
(h) the stated annual interest rate on the originally executed
Note;
(i) the amount of principal and interest payable monthly in
respect of each Loan;
(j) paid-through date;
(k) the lien priority of the related Mortgage and assignment
of leases;
(l) whether the Note is recourse (R), nonrecourse (NR), or
partial recourse (PR) to the Borrower;
(m) the amount of any related Escrows as of the opening of
business on the Closing Date;
(n) the amount of accrued but unpaid interest with respect to
each Loan as of the opening of business on the Closing Date;
(o) the amount of accrued but unpaid interest with respect to
each Loan as of the opening of business on the Closing Date (excluding
any accrued interest with respect to a Loan that is a Past Due Loan as
of the Closing Date);
(p) the annual interest rate charged by the Seller as of the
Closing Date;
(q) the Purchase Price Percentage for such Loan; and
(r) the Loan Purchase Price.
"Collateral Property" means, with respect to each Loan, the
Loan Documents, and each and every loan file, document, account or security
securing such Loan in the possession of Seller, including, without limitation,
any Security Agreement, UCC Financing Statement, assignment of rents, pledge
agreement, guaranty, indemnification agreement, assignment of management
agreement, assignment of stock or partnership units, title insurance policies,
tax and insurance escrows, letters of credit, certificates of deposit or
deposits or escrows held as collateral for such Loan, and other insurance
policies held by Seller, and excluding each and every servicing agreement and
related file.
"Confidentiality Agreement" means any and all confidentiality
agreements that were executed by Purchaser with Seller regarding the
transactions contemplated hereby, including, without limitation, the
confidentiality agreement dated January 19, 1996.
"Consequential Damages" shall have the meaning set forth in
Section 9.2.
"Cross-Collateralized Loan" means a Loan that is secured by
the same Mortgaged Property (or a portion of the same Mortgaged Property) as one
of more of the other Loans, as identified on Schedule B hereto.
"Cross-Collateralized Loan Group" means two or more
Cross-Collateralized Loans each of which is secured by the same Mortgaged
Property (or a portion of the same Mortgaged Property) as each other
Cross-Collateralized Loan in such group.
"Deposit" means the amount paid by the Purchaser herewith
equal to $6,600,000, which amount shall include the $50,000 paid pursuant to the
Due Diligence Deposit Agreement by Purchaser to Seller prior to the date hereof.
"Delivery Breach" shall have the meaning set forth in Section
9.5(a).
"Due Diligence Deposit Agreement" means the Due Diligence
Deposit Agreement dated January 19, 1996 executed by Purchaser and Seller.
"Environmental Reports" means the reports described in
Schedule 7.7.
"Escrows" has the meaning given that term in Section 2.7.
"Ground Lease" has the meaning given that term in Section
4.2(s).
"Hazardous Substances" mean, without limitation: (i) those
substances included within the definitions of any one or more of the terms
"hazardous substances," "hazardous materials," toxic substances," and "hazardous
waste" in CERCLA, RCRA and the Hazardous Materials Transportation Act, as
amended, 49 U. S. C. Section 1801 et seq., and in the regulations promulgated
pursuant to such laws; and (ii) such other substances, materials and wastes as
are or become regulated under applicable local, state or federal laws or
regulations, or which are classified as hazardous or toxic under federal, state
or local laws or regulation, and (iii) any materials, wastes or substances that
are (a) petroleum; (b) friable asbestos; (c) polychlorinated biphenyls; (c)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, as amended, 13 U. S. C. {S} 1321 et seq. (33 U. S. C. {S}1321) or
designated as "toxic pollutants" pursuant to {S} 307 of the Clean Water Act (33
U. S. C. {S} 1317); (e) flammable explosives; or (f) radioactive materials;
provided, however, that lead paint and non-friable asbestos shall not be deemed
for any purpose under this Agreement to be Hazardous Substances.
"Indemnified Party" has the meaning given that term in Section
9.7.
"Indemnifying Party" has the meaning given that term in
Section 9.6.
"Interested Purchaser" means Purchaser, its successors or
assigns, if such Person is a borrower or other obligor, or has an Affiliate that
is a borrower or other obligor, pursuant to a guarantee, letter of credit or
otherwise, under or in connection with any of the Loans or otherwise has an
interest in any of the Loans (other than the interests created by this
Agreement).
"Loan" means a loan to be sold, transferred and conveyed
pursuant to this Agreement that is evidenced by a Note and is included on the
Asset Schedule.
"Loan Agreement" means, with respect to each Loan, the written
agreement setting forth the principal terms of such Loan executed by the
Borrower under such Loan.
"Loan Documents" means, with respect to each Loan, all
documents, agreements or instruments relating to such Loan in Seller's
possession, including, without limitation, the Note, any Loan Agreement, any
Mortgage, any assignment of leases and rents, any letters of credit, any
guarantees, any Security Agreement, any UCC Financing Statement, any pledge
agreements, any indemnification agreements, any assignment of management
agreements, any assignment of permits, licenses and contracts, and any
assignment, supplement, reinstatement, extension, endorsement or modification
thereof.
"Loan Modification Program" is described on Schedule 4.2(f).
"Loan Purchase Price" means, with respect to each Loan, the
amount calculated by multiplying (i) the Purchase Price Percentage set forth in
the Asset Schedule for such Loan, and (ii) the unpaid principal balance of such
Loan as of the Closing Date; provided that for purposes of calculating the
Repurchase Price for the Assets set forth on Schedule C, the Purchase Price
Percentage shall be equal to the percentage set forth opposite the control
number for such Asset on Schedule C.
"Matured Borrower" has the meaning given that term on Schedule
4.2.
"Matured Loans" has the meaning given that term on Schedule
4.2.
"Merger" means the merger between Boston Bancorp and a
subsidiary of Bank of Boston Corporation pursuant to the Agreement and Plan of
Reorganization dated October 10, 1995 between Boston Bancorp and Bank of Boston
Corporation.
"Mortgage" means, with respect to a Loan, a mortgage, deed of
trust or other security instrument creating a lien upon Mortgaged Property
described therein that secures a Note, and all written amendments, modifications
or supplements thereto.
"Mortgaged Property" means the land, building(s) and other
improvements securing any Loan (not including Secondary Mortgaged Property) at
the address as set forth on the Asset Schedule. Notwithstanding anything to the
contrary contained herein, Seller makes no representation or warranty as to any
Secondary Mortgaged Property.
"Note" means, with regard to a Loan, the originally executed
promissory note or notes, bond or other evidence of indebtedness (including but
not limited to an originally executed affidavit of loss of an original Note,
together with a copy of such original lost Note) with respect to such Loan and
all written amendments, modifications or supplements thereto.
"Notice of Claim" means a notice of Purchaser to Seller
meeting the requirements of Section 9.5(b).
"Offset Amount" has the meaning given that term in Section
9.5(g)(v).
"Past Due Loan" is, as of any date, a Loan for which, as of
the opening of business on such date, there exists accrued but unpaid interest
in an amount equal to or greater than a total of 90 days' interest charges on
such Loan.
"Permitted Investment" means certificates of deposit, demand
or time deposits, or banker's acceptances issued by Seller.
"Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or subdivision
thereof.
"Policy" has the meaning given that term on Schedule 4.2.
"Preliminary Date" means the date that is the earlier of (a)
May 1, 1996 or (b) the Business Day next succeeding the date on which the
stockholders of Boston Bancorp approve the Merger.
"Preliminary Schedule" means the schedule to be furnished by
Seller pursuant to Section 5.10 setting forth for each Loan the information, as
of the Preliminary Date, responsive to the categories listed in the definition
of Closing Schedule.
"Purchase Price" means that dollar amount equal to the sum of
all of the Loan Purchase Prices.
"Purchase Price Percentage" means for each Loan the percentage
set forth as the Purchase Price Percentage for such Loan on the Asset Schedule.
"Purchaser" means BlackRock Capital Finance L.P., a Delaware
limited partnership.
"RCRA" means the Resource Conservation and Recovery Act of
1976, as amended, 42 U. S. C. {S} 6901 et seq.
"Required Consents" shall have the meaning given that term in
Section 5.3.
"Repurchase Date" means the date on which any Asset is
repurchased pursuant to this Agreement.
"Repurchase Price" shall have the meaning given that term in
Section 9.5(g).
"Secondary Mortgaged Property" means such additional land,
buildings, other improvements, personal property and other collateral securing a
Loan that are not listed on the Asset Schedule.
"Security Agreement" means any security agreement creating a
lien upon personal property described therein which secures a Note, including,
but not limited to, an assignment of leases.
"Seller" means South Boston Savings Bank.
"Soon to Mature Loans" has the meaning given that term on
Schedule 4.2(f).
"Third Party" means any Person other than Seller and its
Affiliates.
"Third Party Claim" has the meaning given to that term in
Section 9.6.
"Title Insurance Policy" has the meaning given to that term in
Section 4.2(o).
"UCC Financing Statement" means a financing statement executed
and filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"Unmatured Loans" has the meaning given that term on Schedule
4.2(f).
"Unreviewed Mortgaged Properties" means all Mortgaged
Properties other than those Mortgaged Properties identified on Schedule 7.7 (or
any exhibit thereto) as to which an Environmental Report is to be provided by
Seller to Purchaser as described on Schedule 7.7.
ARTICLE II
PURCHASE AND SALE OF THE LOANS
Section 2.1. Purchase and Sale of Assets. Subject to the
terms, provisions and conditions of this Agreement, Seller hereby agrees to
sell, assign and convey unto Purchaser, and Purchaser hereby agrees to purchase
and accept from Seller, on a servicing released basis (that is, with all
servicing agreements or obligations relating to the Loans (other than those set
forth on Schedule 2.1) terminated on or prior to the Closing Date) all of
Seller's right, title, and interest in and to the Assets. The sale of the Assets
shall include all of Seller's rights, title and interest in and to any related
Note, Mortgage, Security Agreement, Loan Agreement, the Mortgaged Property and
any participation or similar agreement representing an interest in the foregoing
and any other related Collateral Property (to the extent assignable); provided,
however, that certain Assets may be deleted from the purchase and sale hereunder
in accordance with Section 7.9 hereof.
Section 2.2. Closing. Seller and Purchaser agree that time is
of the essence under this Agreement and that the closing of the purchase and
sale of the Assets (the "Closing") shall be held on the Closing Date, at 10:00
a.m., at the offices of Ropes & Gray, One International Place, Boston,
Massachusetts or such other place in The Commonwealth of Massachusetts as is
selected by Seller and notice of which is given to Purchaser at least two
Business Days prior to the Closing or at such other place as Seller and
Purchaser shall agree in writing.
Section 2.3. Closing Date. On the Closing Date, in a
substantially contemporaneous closing,
(a) Seller shall:
(i) sell, assign, convey and transfer to Purchaser all
its right, title and interest in and to the Assets, the
Mortgaged Property and the Secondary Mortgaged Property (in
the case of Collateral Property, to the extent assignable);
(ii) deliver to Purchaser the Note for each Loan
endorsed by allonge in blank together with copies of all
intervening endorsements thereof from the original payee to
the Person endorsing;
(iii) deliver to Purchaser the original Mortgage (or a
copy thereof evidencing recording) related to a Loan;
(iv) execute and deliver to Purchaser a bill of sale;
(v) execute and deliver such UCC Financing Statements
and assignments of UCC Financing Statements and such notices
and other documents as may be prepared by and reasonably
requested by Purchaser in accordance with Section 2.8 below;
(vi) subject to Section 2.6, deliver to Purchaser
copies of all other Loan Documents, Security Agreements and
documents, instruments and agreements constituting Collateral
Property; and
(vii) pay to Purchaser amounts due pursuant to Section
2.7.
(b) Purchaser shall pay to Seller in immediately available
funds an amount equal to the sum of (i) the Purchase Price minus the
amounts due to the Purchaser under Section 5.6 plus the amounts due to
the Seller under Section 5.6 minus the Deposit (including all interest
accrued thereon) credited pursuant to Section 5.2 and (ii) the amount
of accrued but unpaid interest based on the interest rate charged by
the Seller at the Closing Date with respect to each Loan as of the
opening of business on the Closing Date (excluding any accrued interest
with respect to a Loan that is a Past Due Loan as of the Closing Date)
and (iii) any amounts paid by Seller on behalf of a Borrower in respect
of payments for which such Borrower's Escrow was insufficient as
indicated on the Closing Schedule.
Section 2.4. Transfer and Recordation Taxes; Responsibility
for Recording. Purchaser shall prepare, file and be responsible for, and shall
pay when due and payable, all transfer, filing and recording fees and taxes,
costs and expenses, and any state or county documentary taxes, if any, with
respect to the filing or recording of any document or instrument contemplated
hereby. Purchaser shall prepare and deliver to Seller, reasonably in advance of
the Closing, documents required to be executed by Seller at Closing pursuant to
Section 2.3(a)(ii) and (v). Purchaser shall bear sole responsibility for
recording or filing all assignments of Mortgage and UCC Financing Statements
delivered to Purchaser at the Closing or thereafter. Notwithstanding the
foregoing, the recording or filing of such documents shall not be a condition to
payment by the Purchaser of the Purchase Price or the Closing.
Section 2.5. Closing Expenses. Except as otherwise expressly
provided herein, whether or not the transactions contemplated hereunder are
completed, Purchaser and Seller shall each be responsible for the payment of its
own closing costs and expenses and its costs and expenses in negotiating and
carrying out its obligations under this Agreement, including, without
limitation, the costs of its counsel. Purchaser shall be responsible for the
payment of all of the costs of its title insurance and all of the due diligence
and other costs and expenses of Purchaser relating to this Agreement and the
transactions contemplated hereby. Subject to Section 5.6(a)(ii), Seller shall be
responsible for the payment of all costs of the Environmental Reports.
Section 2.6. Post-Closing Deliveries. As soon as practicable,
but no later than five (5) Business Days after the Closing Date, at the offices
of Seller or such other locations(s) in The Commonwealth of Massachusetts as
Seller determines, Seller shall deliver to Purchaser originals (to the extent
available and, if not, copies) of any additional Loan Documents and Collateral
Property not delivered to Purchaser at the Closing that are in the possession of
Seller. Without limiting the generality of the foregoing, Seller shall use
reasonable efforts to deliver any documents or other materials to be provided
under this Section 2.6 on the Closing Date and, to the extent that any such
documents and materials are not delivered on the Closing Date, Seller shall
arrange for Purchaser to have such access to such documents and materials after
the Closing Date, during normal business hours, as Purchaser may reasonably
require in order to administer the Loans or to enforce any of Purchaser's rights
with respect thereto. Seller's actions taken pursuant to this Section 2.6 shall
be sufficient, as of the Closing Date, to permit the Purchaser or its designee
to commence servicing the Loans on the Closing Date in accordance with customary
servicing standards.
Section 2.7. Escrows. At Closing, all escrows for taxes,
governmental assessments and insurance premiums, water, sewer and municipal
charges, deposits, security deposits, replacement reserves or other escrowed
funds relating to the Loans remitted to Seller and then remaining undisbursed
(the "Escrows") shall be assigned, transferred and paid over to Purchaser
(except to the extent that such assignments are not permitted by law or the
related Loan Documents) and shall be held by, or for the benefit of, Purchaser
in accordance with the terms on which any such Escrows were held by Seller. All
Escrows shall be held and applied by Purchaser for their designated purposes.
Section 2.8. Delivery of Certain Documents; Filing and
Recording. Notwithstanding anything herein to the contrary, and without limiting
the representations and warranties contained herein, on or after the Closing
Date upon Purchaser's reasonable request and at Purchaser's preparation and
expense, Seller shall execute and make available to Purchaser any number of UCC
Financing Statements in all jurisdictions required, in Purchaser's reasonable
judgment, to convey or perfect Purchaser's right, title and interest in any of
the Notes, Mortgages, Loan Documents, Security Agreements, or other Collateral
Property. In addition, on or after the Closing Date at Purchaser's request,
preparation and expense, Seller shall execute and make available to Purchaser
all notices to insurers and all other documents, including without limitation
assignments of mortgage, which Purchaser reasonably deems necessary under
applicable law to convey or perfect Purchaser's title to any Note, Mortgage,
Loan Document, Security Agreement or other Collateral Property or necessary
under applicable law for Purchaser to enjoy all rights of a holder with respect
thereto. At its sole cost and expense, Purchaser shall prepare and record,
subject to the reasonable approval of Seller, any notice or other documents
requested pursuant to this Section 2.8.
Section 2.9. Limited Purpose of Purchase Price Percentages.
The parties to this Agreement acknowledge that the Purchase Price Percentage for
each Asset is an allocation of the Purchase Price to each Asset derived for the
sole purpose of providing the parties with a mechanism for implementing certain
provisions of this Agreement, including remedies to which the Purchaser may be
entitled, if any. The parties to this Agreement further acknowledge that the
Purchase Price Percentage of each Asset is not necessarily reflective or
determinative of the fair market value of each Asset and that the estimated
value for each Asset as determined pursuant to any provision hereof, whether
expressed as a fixed dollar amount or as a percentage of the aggregate value of
all of the Assets, is not necessarily reflective or determinative of the fair
market value of the Mortgaged Property relating to any Asset or of Seller's or
Purchaser's estimation of such values in agreeing to the Purchase Price. The
foregoing is not intended to alter the limitations set forth herein with respect
to Purchaser's remedies for any breach.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, as of the date
hereof and as of the Closing Date as follows:
Section 3.1. Authority; Binding on Purchaser; Enforceability.
Purchaser is a limited partnership, duly organized, validly existing and in good
standing under the laws of the State of Delaware with powers adequate for the
making and performing of this Agreement and for carrying on the business now
conducted or proposed to be conducted by it. Purchaser has taken all action
required to make all of the provisions of this Agreement the valid and
enforceable obligations they purport to be. Purchaser is duly qualified and in
good standing as a foreign limited partnership in all jurisdictions where it is
required so to be qualified, except for failures to be so qualified that do not
in the aggregate have a material adverse effect on Purchaser and which will not
affect the validity or performance by Purchaser of this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Purchaser and (assuming the due authorization, execution and delivery hereof by
Seller) constitutes the valid, legal and binding agreement of the Purchaser
enforceable in accordance with its terms.
Section 3.2. Conflict with Existing Laws or Contracts. The
execution and delivery of this Agreement and all related documents and the
performance of the obligations hereunder and thereunder by Purchaser do not
violate or conflict with any provision of any law, rule or regulation to which
Purchaser is subject, or violate or conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of any
agreement or instrument to which Purchaser is a party or by which Purchaser or
any of its assets or properties are bound or any judgment, order, ruling or
decree applicable to Purchaser, or result in the creation or imposition of any
lien on any of Purchaser's respective assets or property, which would materially
and adversely affect the ability of Purchaser to perform its obligations under
this Agreement; and Purchaser has obtained all consents, approvals,
authorizations or orders of any court or government agency or body, if any,
required for the execution, delivery and performance by Purchaser of this
Agreement.
Section 3.3. Legal Action Against Purchaser. There are no
judgments, orders, rulings or decrees of any kind against Purchaser unpaid or
unsatisfied of record nor any legal action, suit or other legal, regulatory or
administrative proceeding pending, threatened or reasonably anticipated which
could be filed before any court, regulatory authority or administrative agency
which has, or is likely to have, any material adverse effect on the business or
assets or the condition, financial or otherwise, of the Purchaser or which would
materially and adversely affect the ability of Purchaser to perform its
obligations hereunder.
Section 3.4. Bankruptcy or Debt of Purchaser; Financial
Condition. Purchaser has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law relating to bankruptcy or insolvency, nor has
any such petition been filed against Purchaser. No general assignment of
Purchaser's property has been made for the benefit of creditors, and no
receiver, master, liquidator or trustee has been appointed for Purchaser or any
of its property. Purchaser is not insolvent and the consummation of the
transactions contemplated by this Agreement shall not render Purchaser
insolvent. Purchaser will have as of the Closing Date the financial ability to
meet its obligations under this Agreement. Purchaser certifies that any
financial statements of Purchaser and any financial statements of any Affiliate
of Purchaser submitted to Seller have been prepared in accordance with generally
accepted accounting principles recognized by the American Institute of Certified
Public Accountants or the Financial Accounting Standards Board, or any
successors thereto, and are true and correct and that no circumstances have
occurred or come to its attention since the date of such financial statements
which would have a material adverse impact on the financial condition of
Purchaser or such Affiliate as indicated on any such financial statements
delivered to Seller or would materially and adversely affect the ability to
Purchaser to perform its obligations hereunder.
Section 3.5. Decision to Purchase; Limited Representations and
Warranties; Economic Risk; No Reliance. Purchaser is a sophisticated investor
and its decision to purchase the Assets is based upon its own independent expert
evaluations of the Loan Documents, the Asset Files and other materials deemed
relevant by Purchaser. In entering into this Agreement, Purchaser has not in any
way relied upon any oral or written information from Seller, or any of its
employees, affiliates, agents or representatives, other than the representations
and warranties of Seller contained in Section 4.1 and Section 4.2, in each case
subject to Section 4.3 hereof and the Schedules hereto. Purchaser further
acknowledges that no employee, affiliate, agent or representative of Seller has
been authorized to make, and that Purchaser has not relied upon, any statements
or representations other than those specifically contained in this Agreement.
Purchaser acknowledges and agrees that, except as set forth in the Seller's
representations and warranties in this Agreement, (i) Seller has not
represented, warranted or covenanted the nature, accuracy, completeness,
enforceability or validity of any of the Loan Documents, Asset Files and/or all
documentation, information, analysis and/or correspondence, if any, which is or
may be sold, transferred, assigned and conveyed to Purchaser and (ii) all Assets
are sold, transferred, assigned and conveyed to Purchaser on an "as is, where
is" basis, with all faults. Purchaser acknowledges that the Assets may have
limited or no liquidity and Purchaser represents that it will have, from and
after the Closing Date, the financial ability to own the Assets for an
indefinite period of time and to bear the economic risk of an outright purchase
of the Assets and a total loss of the Purchase Price for the Assets.
Section 3.6. Reserved.
Section 3.7. Compliance with Requirements. The Purchaser has
complied fully and on a timely basis with all terms and conditions of the
Confidentiality Agreement, which compliance included, without limitation, the
taking of all actions required to be taken pursuant to such Confidentiality
Agreement on a timely basis and the refraining from taking any actions
prohibited pursuant to such Confidentiality Agreement.
Section 3.8. Due Diligence. Purchaser acknowledges that it has
been urged, invited and directed to conduct such due diligence review and
analysis of the due diligence materials made available to it, including but not
limited to the Loan Documents, Asset Files and related information, together
with such records as are generally available to the public from local, county,
state and federal authorities, record-keeping offices and courts (including,
without limitation, any bankruptcy courts in which any Borrower, guarantor or
surety, if any, may be subject to any pending bankruptcy proceeding), as
Purchaser deemed necessary, proper or appropriate in order to make a complete
informed decision with respect to the purchase and acquisition of the Assets.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1. Representations and Warranties by Seller. Subject
to the provisions and limitations of Section 4.3. Seller represents and
warrants, as of the date hereof and the Closing Date, as follows:
(a) Authority; Binding on Seller; Enforceability. Seller is a
state chartered bank duly organized, validly existing and in good
standing under the laws of The Commonwealth of Massachusetts with
powers adequate for the making and performing of this Agreement and for
carrying on the business now conducted or proposed to be conducted by
it. Seller has taken all action required to make all of the provisions
of this Agreement the valid and enforceable obligations they purport to
be. This Agreement has been duly and validly authorized, executed and
delivered by the Seller and (assuming the due authorization, execution
and delivery hereof by Purchaser) constitutes the valid, legal and
binding agreement of the Seller enforceable in accordance with its
terms. Upon the merger of Seller into The First National Bank of
Boston, The First National Bank of Boston will become the successor to
Seller under this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution
and delivery of this Agreement and all related documents and the
performance of the obligations hereunder and thereunder by Seller do
not violate or conflict with any provision of any law, rule or
regulation to which Seller is subject, or violate or conflict with or
result in a breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to which Seller
is a party or by which Seller or any of its assets or properties are
bound or any judgment, order, ruling or decree applicable to Seller, or
result in the creation or imposition of any lien on any of Seller's
respective assets or property, which would materially and adversely
affect the ability of Seller to perform its obligations under this
Agreement; and Seller has obtained all consents, approvals,
authorizations or orders of any court or government agency or body, if
any, required for the execution, delivery and performance by Seller of
this Agreement.
(c) Legal Action Against Seller. There are no judgments,
orders, rulings or decrees of any kind against Seller unpaid or
unsatisfied of record nor any legal action, suit or other legal,
regulatory or administrative proceeding pending, threatened or
reasonably anticipated which could be filed before any court,
regulatory authority or administrative agency which has, or is likely
to have, any material adverse effect on the business or assets or the
condition, financial or otherwise, of the Seller or which would
materially and adversely affect the ability of Seller to perform its
obligations hereunder.
(d) Bankruptcy or Debt of Seller; Financial Condition. Seller
has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Seller. No
general assignment of Seller's property has been made for the benefit
of creditors, and no receiver, master, liquidator or trustee has been
appointed for Seller or any of its property. Seller is not insolvent
and the consummation of the transactions contemplated by this Agreement
shall not render Seller insolvent.
Section 4.2. Representations and Warranties by Seller as to
each Loan. Subject to the provisions and limitations of Section 4.3 and Schedule
4.2, Seller hereby represents and warrants, as to each Loan listed on the Asset
Schedule as follows; provided that no representation and warranty is made with
respect to any (i) Secondary Mortgaged Property or (ii) any Asset to the extent
that Purchaser is an Interested Purchaser with respect to such Asset (other than
with respect to any Secondary Mortgaged Property); and provided that,
notwithstanding any representation, warranty or covenant in this Section 4.2 to
the contrary, Seller makes no representation, warranty or covenant whatsoever
with respect to the status of the maturity date of or interest rate on any Loan
due to the existence of or the consequences arising from Seller's Policy as set
forth on Schedule 4.2; and provided, further, that if, on or after the Closing
Date, the Purchaser procures or is able to procure (including, without
limitation, by means of the assignment of title insurance by Seller) without
unreasonable cost title insurance or is entitled to receive the benefit of title
insurance by endorsement or otherwise with respect to any Loan, then to the
extent that such insurance provides or would have provided coverage with respect
to any matters addressed by any of the following representations and warranties,
then, with respect to such matters, such representations and warranties shall
have no force or effect and shall be deemed not to have been made by Seller:
(a) Validity of Collateral Documents. Each Mortgage and each
Security Agreement related to such Mortgage creates in Seller a valid
security interest in the property described therein and each Mortgage
(and related assignment of leases) has the lien priority set forth in
the Asset Schedule.
(b) No Defense by Borrower. No Loan is subject to any valid
right of rescission, set-off, abatement, diminution, counterclaim or
defense that materially affects the ability of the holder thereof to
enforce the provisions of the Note or Mortgage and to Seller's
knowledge no such claims have been asserted by the related Borrower as
of the date hereof with respect to such Loan.
(c) Certain Asset Schedule Information. Except with respect to
changes arising from the Loan Modification Program after the date of
such schedule, (i) the information for each such Loan set forth in
items (a) through (m) of the Asset Schedule is true and correct in all
material respects as of January 31, 1996 and (ii) the information for
each Loan set forth in items (a) through (p) on the Preliminary
Schedule shall be true and correct in all material respects as of the
Preliminary Date. The information for each Loan set forth on items (a)
through (p) on the Closing Schedule shall be true and correct in all
material respects as of the opening of business on the Closing Date.
(d) Enforceability. The Note relating to each Loan sold by
Seller pursuant hereto and the related Mortgage and Security Agreement
are the legal, valid and binding obligations of the maker or obligor
thereof, enforceable against such maker or obligor in accordance with
their terms except (a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and (b) to the extent the inability to
enforce any particular provision or provisions does not adversely
affect the ability of the holder thereof to foreclose on the related
Mortgaged Property for any payment or other material default by the
maker or obligor thereunder or the practical realization of the
intended benefits of the Mortgage to which such Mortgaged Property is
subject.
(e) Seller's Right to Sell. Except as set forth on Schedule
4.2(e) hereto, Seller has the legal right to sell and assign each Loan
to be sold by it hereunder, together with the related Note, Mortgage,
Loan Agreement and any participation or similar agreement representing
an interest in the foregoing and any other related Collateral Property
(to the extent assignable) without the consent of any Third Party,
except such consent as has been obtained or will be obtained by the
Closing Date or is unnecessary under applicable law.
(f) No Modification. Except pursuant to the Loan Modification
Program and as set forth on Schedule 4.2(f) hereto, neither Seller nor
to Seller's knowledge any prior holder of such Loan has modified any
related Note or Mortgage or satisfied, canceled or subordinated such
Note or Mortgage in whole or in part or released the Borrower or all or
any portion of the Mortgaged Property from the lien of the Mortgage.
(g) Disbursement of Loan Proceeds. Except as set forth on
Schedule 4.2(g) hereto, the Borrower does not have the right to
disbursement of Additional Advances with respect to any Loan sold by
Seller pursuant hereto.
(h) Cross-Collateralization. Except as set forth on Schedule
4.2(h), each Loan sold by Seller pursuant hereto is not
cross-collateralized with any other loan except for another Loan.
(i) Owner. Except as set forth on Schedule 4.2(i), Seller
holds title to, and is the sole owner of, the Loans to be sold by it
hereunder. Such Loans have not been assigned or pledged (except as
provided herein) and, on the Closing Date, the transfer of any related
Mortgage and Note will be free of any right, interest or valid claim of
any Third Party or Seller or its Affiliates.
(j) Loan Documents. The Note, Mortgage and Loan Documents
relating to the Loans sold by Seller pursuant hereto, and any documents
modifying the terms of such Note, Mortgage or Loan Documents included
in the Asset File, are true and correct copies of the documents they
purport to be and, except pursuant to the Loan Modification Program,
have not been superseded, amended, modified, canceled or otherwise
changed except as disclosed in the Asset File.
(k) Condemnation. Except as set forth in the Asset File, there
is no pending or, to Seller's knowledge, threatened condemnation or
similar proceeding affecting the Mortgaged Property securing the Loans
sold by Seller pursuant hereto that could have a material adverse
effect on the adequacy of such Mortgage as security for the related
Loan or on the current use of such Mortgaged Property for its intended
purpose.
(l) Litigation. There is no litigation, proceeding or any
order, injunction or decree to which Seller is a party outstanding,
existing or relating to any Loan sold by Seller pursuant hereto or the
related Mortgaged Property, which could have a material adverse effect
upon such Loan or such related Mortgaged Property.
(m) Asset File; Pay Histories. The Asset File includes all
material documents, or copies thereof, in possession of Seller relating
to the Loans except as otherwise expressly noted therein and except
with respect to documents executed in connection with the Loan
Modification Program, which documents shall be inserted in the Asset
File when available. Seller makes no representation or warranty as to
the accuracy of facts recited in the other documents and papers that
are included in the Asset File, including, without limitation, rent
rolls, operating statements, appraisals and other information. The pay
histories of the Loans furnished to Purchaser by Seller are the pay
histories used by the Seller in its business and, to Seller's
knowledge, such pay histories are true and correct in all material
respects.
(n) Compliance with Laws. To Seller's knowledge, no written
notice has been issued by any governmental authority to the effect that
(i) any zoning law, ordinance or regulation was violated as of the date
of closing of any Loan by the maintenance, operation, occupancy or use
of any of the related Mortgaged Property such that the violation would
adversely affect the then-current operations, then-current occupancy or
then-current use of such Mortgaged Property, (ii) any building, or
other federal, state or municipal law, ordinance, regulation, or any
restrictive covenant is currently, as of the date hereof, violated by
the current maintenance, current operation, current occupancy or
current use of any of such Mortgaged Property such that the violation
would adversely affect the current operation, current occupancy or
current use of such Mortgaged Property or (iii) any licenses, permits,
inspections, authorizations, certifications and approvals required by
any governmental authorities having jurisdiction over the operation of
such Mortgaged Property, in its present manner, have not been performed
or issued and paid for and are not in full force and effect, in each
case, without which the operation of such Mortgaged Property would be
adversely affected.
(o) Title Insurance. Except as set forth on Schedule 4.2(o)
hereof, there has been issued in connection with each Mortgage relating
to a Loan (i) a valid and enforceable ALTA policy of title insurance
(or any amendment or supplement thereto or other form of title
insurance policy affording equivalent coverage and customarily accepted
by institutional lenders in the jurisdiction in which the Mortgaged
Property relating to a Loan is located) (each a "Title Insurance
Policy") by a title insurer in an amount equal to the lesser of (A) the
principal amount of such Loan to the extent advanced and (B) the
approximate fair market value of such Mortgaged Property as of the date
of recording of the subject Mortgage, subject to the conditions and
limitations set forth in such Title Insurance Policy, or (ii) a title
opinion included in the Asset File from an attorney licensed to
practice in such jurisdiction or (iii) a title report or specimen
policy from a title insurer or such other form of title assurance as
was customarily employed in the relevant jurisdiction (including
blanket insurance coverage). If a Title Insurance Policy was issued,
such Title Insurance Policy is presently in full force and effect and
all premiums with respect thereto that are due and payable have been
paid in full. Seller has not by its actions or inactions adversely
affected any of its rights or the amount of its coverage under such
Title Insurance Policy. In addition, as of the Closing Date each such
Title Insurance Policy will insure the Purchaser that each of the
Mortgages relating to a Loan is a valid lien on the property therein
described with the lien priority disclosed on the Asset Schedule, and
that the related Mortgaged Property is free and clear of all
encumbrances, liens, and exceptions, subject only to (A) current real
property taxes and assessments and water and sewer charges not yet due
and payable, (B) covenants, conditions, restrictions, rights-of-way,
easements and other matters such as are customarily acceptable to
institutional lenders in the jurisdiction in which such Mortgaged
Property is located and (C) other matters to which like properties are
commonly subject that do not, individually or in the aggregate,
materially interfere with the current use of the Mortgaged Property or
the benefits of the security intended to be provided by the related
Mortgage. In any instance in which the Asset File did not contain a
Title Insurance Policy, Purchaser can, upon the payment of the
applicable and customary premium, obtain an ALTA policy of title
insurance (or its equivalent) from a nationally recognized title
insurance company insuring Purchaser as of the Closing Date that each
of the subject Mortgage(s) relating to the Loans is a valid and
enforceable lien on the Mortgaged Property with the lien priority
disclosed on the title opinion, commitment or report contained in the
Asset File, free and clear of all encumbrances, liens and exceptions,
subject only to the matters described in clauses (A) and (B) of the
immediately preceding sentence. Notwithstanding the foregoing, but
without in any way limiting the proviso in the introductory sentence of
this Section 4.2, Seller shall not be deemed to have breached this
representation and warranty or any representation or warranty with
respect to the lien position of a Mortgage if (i) a title insurance
policy as described above is provided to the Purchaser, or (ii)
Purchaser is able to obtain a title insurance policy as described above
without unreasonable cost or expense (whether or not Purchaser actually
procures such insurance). Any bringdown endorsement of a Title
Insurance Policy in favor of Purchaser or its successors or assigns
shall be procured and paid for by Purchaser.
(p) Real Estate Taxes; Water and Sewer Charges. Except as set
forth on Schedule 4.2(p), there are no unpaid real property taxes due
and payable against a Mortgaged Property relating to a Loan. For the
purposes of this representation and warranty, real estate taxes shall
not be deemed to be due and payable until the Business Day immediately
preceding the date on which such taxes would become delinquent, such
that interest would accrue or penalties would become assessable
thereon. To Seller's knowledge, except as set forth on Schedule 4.2(p)
no Borrower is delinquent in respect of its obligation to pay water and
sewer charges as of the date hereof.
(q) Hazard Insurance. The Asset File contains any hazard
insurance policy certificates with respect to such Mortgaged Property
that Seller has in its possession, and with respect to all other
Mortgaged Property relating to a Loan, Seller has delivered to
Purchaser evidence of blanket hazard insurance coverage, and Seller has
not received any notice of, and there has been no, cancellation or
lapse of such policy.
(r) Environmental Matters. Except as described in any
Environmental Report, to the knowledge of Seller:
(i) No amount of Hazardous Substances has been disposed
of, or identified on, under or at, the Mortgaged Property; and
(ii) The Mortgaged Property has never been used for the
storage, treatment or disposal of Hazardous Substances other
than in accordance with applicable laws; and
(iii) Hazardous Substances are not present in, on or
below the Mortgaged Property in such a manner or concentration
as to violate any law or regulation; and
(iv) The Mortgaged Property by itself or as part of any
other property, has never been identified by any government
agency as the site of a "release", within the meaning of
CERCLA or RCRA, of a Hazardous Substance.
(s) Ground Leases. With respect to any Loan secured wholly or
partly by the interest of the Borrower as a lessee under a ground lease
of the related Mortgaged Property (a "Ground Lease"), a list of which
is set forth on Schedule 4.2(s), and not by a fee interest in such
Mortgaged Property:
(i) each such Ground Lease is legal, valid and binding,
and enforceable against the related lessor in accordance with
its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and
by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at
law);
(ii) such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
(iii) as of the Closing Date, Seller has not received
any written notice of default or termination under any Ground
Lease; and
(iv) Seller has received no written notice of
non-compliance with any restriction encumbering any leased
property, and Seller has not received written notice of any
zoning violation adversely affecting the value or use of the
related Mortgage Property.
(t) Structural Defects. Each Mortgaged Property is free of any
material structural defects for which insurance proceeds or escrowed
reserves held under the control of Seller are not available to repair
such defects. For purposes hereof, a material structural defect means a
failure of a building or improvement element or system to function or
operate for its or their intended purpose (e.g., roof failure, failure
of the HVAC system to operate correctly, etc.) or any unrepaired damage
by fire or other casualty which, individually or in the aggregate with
respect to the Mortgaged Property, would interfere materially with the
use and enjoyment of the Mortgaged Property. A material structural
defect does not include normal wear and tear of any building or
improvement system or element.
(u) Bankruptcy or Debt of Borrowers; Financial Condition.
Except as set forth in Schedule 4.2(u), to Seller's knowledge, as of
the date hereof no Borrower has filed any petition seeking or
acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any law
relating to bankruptcy or insolvency, nor has any such petition been
filed against any Borrower. Except as set forth in Schedule 4.2(u), to
Seller's knowledge, no general assignment of any Borrower's property
has been made for the benefit of creditors, and no receiver, master,
liquidator or trustee has been appointed for any Borrower or any of its
respective property. Except as set forth in Schedule 4.2(u), to
Seller's knowledge, as of the date hereof no Borrower is insolvent and
the consummation of the transactions contemplated by this Agreement
shall not render any Borrower insolvent.
Section 4.3 Breach of a Representation or Warranty. Seller and
Purchaser understand that, if any of Seller's representations or warranties is
breached, Purchaser is limited to the exercise of its rights and the remedies
against Seller expressly set forth in Article IX. In no event shall a breach of
a representation or warranty in Article IV be used as evidence of or be deemed
to constitute bad faith, misconduct or fraud even in the event that it is shown
that Seller or any of its directors, employees, officers, representatives or
agents knew or should have known of the existence of information that was
inconsistent with any of the representations or warranties provided in this
Article IV.
ARTICLE V
COVENANTS OF SELLER AND PURCHASER
Section 5.1. Payment of Deposit. Contemporaneously with the
execution of this Agreement, Purchaser shall deposit with Seller, in immediately
available funds, the Deposit.
Section 5.2. Investment and Disposition of Deposit. On the
Business Day following the receipt by Seller of the Deposit from Purchaser
pursuant to Section 5.1, such Deposit shall be invested, by or on behalf of
Seller, in an account maintained by Seller, in Permitted Investments designated
in writing by Purchaser. The Deposit and any investment thereof shall be held in
the name of Seller, or at its option, the name of Purchaser, until (a) the
Closing occurs under this Agreement, in which event the Deposit and accrued
interest thereon shall be credited by Seller to Purchaser against the Purchase
Price payable by Purchaser in accordance with Section 2.3, or (b) this Agreement
has been terminated, in which event the Deposit (and interest thereon) will be
paid to Purchaser (or, at Seller's election, any investments of the Deposit may
be delivered to the Purchaser) or to Seller in accordance with Section 8.2(a),
8.2(b) or 8.2(c), as the case may be.
Section 5.3. Permits, Authorizations, Etc. Seller and
Purchaser shall obtain any and all material permits, authorizations, consents,
waivers, clearances or approvals (including but not limited to such consents and
waivers as are required to be obtained by Seller to permit Seller to sell the
Assets listed on Schedule 4.2(e) (the "Required Consents")), required for the
lawful consummation by it of the transactions contemplated by this Agreement.
Section 5.4. Inspection of Files. Upon reasonable advance
written notice to Seller, Purchaser shall be afforded access to the Asset Files
during normal business hours from and after the date hereof until the Closing
Date to facilitate the performance of this Agreement or for inspection of the
Asset Files.
Section 5.5. Termination of Servicing by Seller. On the
Closing Date, Seller shall cooperate with Purchaser in the delivery at the
Seller's offices of copies of relevant servicing files, if any, to Purchaser or
Purchaser's designee, at Purchaser's expense. Seller and Purchaser shall
cooperate with each other to facilitate an orderly transfer of servicing. Seller
shall have no obligation to service the Assets after the Closing Date, unless
otherwise agreed to in writing by Seller and Purchaser.
Section 5.6. Certain Payments.
(a) Credits to Purchaser. Purchaser shall receive a credit
against the Purchase Price due to Seller at Closing as provided in
Section 2.3 (or at Seller's election, if the calculation cannot be made
on or before the Closing Date, or is impractical to make on such date
because of the absence of the required information, such amount shall
be credited for the account of Purchaser at the earliest possible date
thereafter when such calculation can be made) with respect to the
following amounts:
(i) the amount of net hazard insurance proceeds or
condemnation proceeds not applied to restore the related
Mortgaged Property and actually received by Seller on or after
the Closing Date, and
(ii) one-half of the aggregate amount by which any
unscheduled repayment in respect of the principal of any Loan
exceeds the amount calculated by multiplying (A) the Purchase
Price Percentage set forth on the Asset Schedule for such Loan
and (B) the unpaid principal balance of the Loan as of the
date of such repayment, actually received by Seller on or
after March 1, 1996, and by then subtracting (X) related
reasonable costs and expenses, including, without limitation,
any servicing fees and compensation and reimbursement of
advances payable to third party servicers consistent with past
practices of Seller and (Y) the cost to Seller of the
Environmental Reports.
With respect to any and all payments received by Seller on or after the
Closing Date for which Purchaser is entitled to a credit under this Section
5.6(a) on account of any Loan sold by Seller pursuant hereto and any payments in
respect of principal and interest, in each case, which payments relate to
periods after the Closing Date or relate to periods prior to the Closing Date
for which Purchaser paid Seller pursuant to Section 2.3(b)(ii), Seller promptly
shall remit such payments to Purchaser in immediately available funds. In
addition, after the Closing Date and promptly after receipt, Seller shall
deliver, forward and remit to Purchaser, at Purchaser's expense, copies of
originals of any and all bills, invoices, insurance policies, letters, documents
and other correspondence or communications relating to any Loan that are
received by Seller.
(b) Amounts in Respect of Bankruptcies. With respect to
amounts held with respect to a Loan by a bankruptcy court, bankruptcy
trustee, bankruptcy debtor-in-possession, receiver in foreclosure or
similar Third Party, Seller's interest in same shall be assigned to
Purchaser and, if any portion thereof is received by Seller, it shall
be paid or credited to Purchaser promptly after receipt.
(c) Further Adjustments. If, after Closing, any adjustments at
the Closing were made inaccurately or incompletely, Seller and
Purchaser agree to recalculate such adjustments at the earliest
possible date, provided notice is delivered by the discovering party to
the other party prior to the first anniversary of the Closing Date.
Section 5.7. Litigation Cooperation. From and after the
Closing Date, Seller shall cooperate in general with Purchaser in connection
with any litigation between Purchaser and one or more Borrowers involving the
Loans (but not with respect to any litigation involving this Agreement), but
Seller shall not be required to institute any lawsuit or to expend any sums of
money or any significant amount of resources in connection with such
cooperation.
Section 5.8. Covenants of Seller. Seller covenants and agrees
with Purchaser (and, where applicable, Purchaser covenants and agrees with
Seller) as follows:
(a) Notice to Borrowers. From and after the Closing, Seller
shall cooperate with Purchaser in notifying each Borrower, or its
successors or assigns, under each of the Loans of the assignment
thereof from Seller to Purchaser. Such notification shall be by letter
prepared and delivered to such Borrower or its successors and assigns,
by Purchaser, which letter shall be in form and substance satisfactory
to Seller.
(b) Servicing of the Loans. Except with respect to (i) those
matters set forth in the following sentence or (ii) as further
described on Schedule 5.8(b) hereto or (iii) pursuant to the Loan
Modification Program, Seller shall service and administer the Loans
until the Closing Date in conformity with its past practices. Further,
except as required by law, the terms of the Loan Documents or pursuant
to previously negotiated settlements or similar contracts entered into
or pending as of the Closing Date as further described on Schedule
5.8(b) hereto, without Purchaser's consent (which consent shall not be
unreasonably withheld or delayed), Seller may not between the date
hereof and the Closing Date: (i) release any collateral or any party
from any liability on or with respect to any of the Loans, (ii) amend
any of the Loan Documents or compromise or settle any claims of any
kind or character with respect to any of the Loans, (iii) initiate,
complete or otherwise take any action with respect to a foreclosure on
any of the Collateral Property or (iv) actively solicit unscheduled
repayments of Loans (provided that Purchaser acknowledges that the
operation of the Loan Modification Program may induce prepayment of
Loans) unless, in its judgment, Seller determines that an action under
clauses (i), (ii), or (iii) of this sentence should be taken to enhance
or protect the value of a Loan. In the event that Seller determines to
take any action pursuant to clause (i), (ii) or (iii) of the foregoing
sentence, Seller shall give prior notice thereof to Purchaser. If
Seller receives from Purchaser a written objection to the actions
proposed to be taken by Seller with respect to such Loan within (10)
days after the giving of such notice to Purchaser and Seller
determines, in its discretion, not to follow Purchaser's reasonable
course of action which is contained in such notice of objection,
Purchaser shall be deemed to have objected to Seller's taking such
action, and shall have the right to exclude the related Loan from the
Assets purchased by it pursuant to this Agreement. If Seller receives
no such written objection or instructions from Purchaser within such
ten-day period, Purchaser shall have no right to exclude the related
Loan from the Assets purchased by it, and shall remain obligated to
purchase such Loan pursuant to this Agreement. Promptly upon the
receipt of a written request of Purchaser, Seller shall disclose to
Purchaser the status of any Loan foreclosure in progress and any
actions taken in connection therewith as of the Closing Date.
Notwithstanding the foregoing, Seller shall not sell any Loan or any
Mortgaged Property acquired in foreclosure after the date hereof and
before the Closing Date.
(c) Notice to Purchaser Seller shall immediately notify
Purchaser upon (i) the public announcement of the date of any meeting
of the stockholders of Boston Bancorp scheduled to occur after the date
hereof and prior to the Closing Date and (ii) the compilation of the
results of any vote taken by such stockholders with respect to the
Merger.
Section 5.9. Confidentiality. The Confidentiality Agreement
shall remain in full force and effect from the date hereof through the Closing
Date and if this Agreement is terminated in accordance with the terms thereof.
Section 5.10. Preliminary Schedule; Closing Schedule. On the
third Business Day occurring after the Preliminary Date, Seller shall furnish
Purchaser with the Preliminary Schedule and on the Closing Date Seller shall
furnish Purchaser with the Closing Schedule.
Section 5.11. Environmental Reports. Seller shall use
reasonable efforts to furnish to Purchaser the Environmental Reports on or
before March 15, 1996.
Section 5.12. Changes to Asset Files. From time to time prior
to the Closing Date, Seller may update the Asset Files and shall provide
Purchase of notice as to any such changes. Any such changes shall not be deemed
to constitute or evidence a breach of a representation or warranty hereunder.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1. Conditions to Obligation of Purchaser. The
obligation of Purchaser to effect the Closing shall be subject to the
fulfillment or waiver at or prior to the Closing Date of the following
conditions:
(a) Representations and Warranties. The representations and
warranties of Seller set forth in Article IV shall be true and correct
in all material respects as of the date of this Agreement and as of the
Closing Date as though made at and as of the Closing Date, except as
otherwise contemplated by this Agreement or consented to in writing by
Purchaser (it being understood that representations and warranties that
speak as of a specified date shall continue to speak only as of the
date so specified); provided that this Section 6.1(a), as it relates to
the representations and warranties set forth in Section 4.2, shall not
be invoked by Purchaser to prevent Closing and Purchaser's obligation
to effect the Closing will remain in full force and effect unless and
until the cost to Purchaser to remedy, or, if remedy is impracticable,
the adverse effect on the Assets caused by, all breaches of
representations and warranties contained in Section 4.2 exceeds five
percent (5%) of the Purchase Price; provided that in determining such
cost Purchaser shall not include any cost in excess of the Loan
Purchase Price for the Asset as to which such breach relates.
(b) Performance of Obligations. Seller shall have in all
material respects performed all obligations required to be performed by
it under this Agreement prior to the Closing Date; provided that, in
the event Seller has not obtained a Required Consent on or prior to the
Closing Date, Seller shall remove the Asset relating to such Required
Consent pursuant to Section 7.9 and such removal shall constitute
satisfaction of Seller's obligation with respect to such unobtained
Required Consent.
(c) Seller shall not have removed Assets from the Closing
Schedule pursuant to Section 7.9 (iii) and (v) the aggregate Loan
Purchase Price of which exceeds five percent (5%) of the Purchase
Price.
Section 6.2. Conditions to Obligation of Seller. The
obligation of Seller to effect the Closing shall be subject to the fulfillment
or waiver at or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Purchaser set forth in Article III shall be true and
correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made at and as of the Closing Date,
except as otherwise contemplated by this Agreement or consented to in
writing by Seller (it being understood that representations and
warranties that speak as of a specified date shall continue to speak as
of the date so specified); and
(b) Performance of Obligations. Purchaser shall have in all
material respects performed all obligations required to be performed by
it under this Agreement prior to the Closing Date;
provided that this Section 6.2 shall not be invoked by Seller to
prevent the Closing and Seller's obligation to effect the Closing will
remain in full force and effect unless and until (i) Purchaser does not
pay at the Closing all amounts payable by it hereunder; (ii) Purchaser
materially breaches its representations in Section 3.3 or 3.4, which
such breach could give rise to a material adverse effect on Seller's
ability to retain the Purchase Price, as determined in Seller's
reasonable discretion, or (iii) the cost to Seller of all breaches of
representations by Purchaser and nonperformance of obligations
hereunder by Purchaser exceeds five percent (5%) of the Purchase Price.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1. Cooperation. Seller and Purchaser agree that
Purchaser may conduct additional due diligence on the Loans prior to the Closing
Date. Prior to the Closing Date, however, Purchaser shall (i) designate no more
than two (2) persons who shall be authorized to contact Seller or its
designee(s) with respect to performing due diligence and Closing-related
activities (although additional persons may be authorized to actually perform
due diligence related activities under the supervision of such contact persons)
and communicating with respect to Closing-related matters and (ii) not contact
the Borrowers except upon the prior written consent of Seller. Prior to the
Closing Date, Seller will provide Purchaser full access to the Asset Files
during reasonable hours and upon reasonable advance notice.
In addition, Seller shall cooperate with Purchaser prior to the Closing
Date by providing Purchaser with access to such material and non-privileged
documents or other materials as may be in its possession or are obtainable only
by it on a reasonable basis, provided that Seller shall not be obligated to
incur any cost or expense (unless Purchaser agrees promptly to reimburse or
indemnify Seller in a manner reasonably acceptable to it, for such cost or
expense) or any liability as a result of such cooperation (provided that the
foregoing limitation shall not change Seller's representations and warranties
under Section 4.2 with respect to Loans to be sold by it pursuant hereto).
Section 7.2. Conformity to Law. Purchaser agrees to abide by
all applicable state and federal laws, rules and regulations regarding the
handling and maintenance of all documents and records relating to the Loans
purchased hereunder and the servicing thereof, including, but not limited to,
the length of time such documents and records are to be retained.
Section 7.3. Inspection by Seller. After the transfer of
documents or files to Purchaser pursuant to the terms of this Agreement,
Purchaser agrees that Seller, at Seller's expense, shall have the continuing
right to use, inspect, and make extracts from or copies of any such documents or
records, upon Seller's reasonable notice to Purchaser. Purchaser further agrees
to allow Seller, at Seller's expense, the temporary possession, custody and use
of original documents for any lawful purpose and upon reasonable terms and
conditions and upon reasonable notice to Purchaser. Before destruction or
disposition of any documents or files transferred hereunder prior to April 30,
1997, Purchaser shall give reasonable notice to Seller and allow Seller, at its
own expense, to recover the same from Purchaser, except that this obligation
will terminate upon sale of the Loan by Purchaser; provided that, prior to such
sale, Purchaser shall give reasonable notice to Seller and allow Seller, at its
own expense, to copy such documents.
Section 7.4. Foreclosure of Real Property by Seller Prior to
Closing. In the event that prior to the Closing Date hereunder Seller forecloses
upon or otherwise takes title to a Mortgaged Property in a manner that
materially deviates from the consent, given or deemed to be given to Seller by
Purchaser with respect thereto pursuant to Section 5.8(b), Purchaser shall have
the right to elect in writing no later than two Business Days prior to the
Closing Date either (a) to purchase such Mortgaged Property upon mutually
agreeable terms and pursuant to mutually satisfactory documentation or (b) not
to purchase the Mortgaged Property or the Loan secured by the Mortgaged Property
at issue, and accordingly, such Asset, together with the Collateral Property
related to any such Asset, shall be removed from the Closing Schedule by Seller.
In such event, Seller shall provide to Purchaser a revised Closing Schedule
reflecting any such removal. Only the Assets described on such revised Closing
Schedule shall be conveyed to Purchaser at Closing and the Purchase Price shall
be reduced by an amount equal to the Purchase Price Percentage of the unpaid
principal balance of the related Loan.
Section 7.5. Condemnation. Seller agrees to give Purchaser
written notice of any action or proceeding instituted or pending, in eminent
domain or for condemnation affecting any material part of any Mortgaged Property
relating to a Loan promptly after such Seller's receipt thereof. If, after the
Preliminary Date but prior to the Closing Date, all or any part of such
Mortgaged Property is taken by condemnation or eminent domain proceeding or
other transfer in lieu thereof, Seller will credit to Purchaser on the Closing
Date an amount calculated in accordance with Section 5.6(a)(i). If by the
Closing Date, Seller has not received the condemnation proceeds, then the
parties shall still consummate the conveyance on the Closing Date of the Loan
relating to such Mortgaged Property and Seller will on such Closing Date assign
to Purchaser all rights of Seller to the condemnation award and to all other
rights or claims arising out of or in connection with any such eminent domain or
condemnation action or proceeding.
Section 7.6. Certain Use Restrictions. Purchaser acknowledges
that certain information contained in the Asset File, including without
limitation information concerning appraisals and environmental reports, may
contain restrictions on their use. Purchaser agrees that (i) it will not use any
such information in violation of the terms of the related governing documents,
(ii) no representation or warranty has been made concerning such information by
any preparer of such information or by any other person, and (iii) except as
otherwise provided herein in the case of Seller, it will take no action, legal
or otherwise, against or involving Seller, Goldman, Sachs & Co. or Hanford/Healy
Companies, arising out of or in connection with such information.
Section 7.7. Environmental Reports. The Environmental Reports
shall be prepared in accordance with Schedule 7.7.
Section 7.8. Reserved.
Section 7.9. Seller's Right to Remove an Asset. On or prior to
the Closing Date, Seller may remove an Asset from the Closing Schedule so that
the Asset will not be further subject to this Agreement in the event, but only
in the event, (i) the Loan related to such Asset has been repaid, (ii) Seller is
acting pursuant to Section 7.4, (iii) the sale of the Asset pursuant hereto
violates any law, rule or regulation applicable to Seller or an Asset, (iv) of
mutual agreement by Purchaser and Seller as to such removal or (v) Seller has
failed to obtain on or prior to the Closing Date a Required Consent relating to
such Asset. Seller's removal of an Asset in accordance with the provisions of
this Section 7.9 shall not (i) subject to Section 6.1(c), excuse Purchaser's
obligation to close on the Assets remaining on the Closing Schedule (unless no
Assets are then subject to this Agreement) nor (ii) entitle Purchaser to any
compensation for the change in the Closing Schedule whatsoever other than the
reduction in the Purchase Price attributable to such removed Asset.
Section 7.10. Post Closing Conduct. Purchaser acknowledges
that its actions following Closing with respect to the Loans will affect the
business, goodwill and prospects of Seller and its successors and, therefore,
agrees that, for a period of 120 days following the Closing, it shall service
the Loans and do business with the Borrowers in a manner consistent with the
servicing standards and business judgment customarily employed by commercial
lenders, subject to the right of Purchaser to exercise its rights under the Loan
Documents with respect to individual Loans. Purchaser agrees to establish or
cause to be established by a Person with respect to which Purchaser possesses a
majority of the voting control (or another Person controlled by Purchaser
satisfactory to Seller), promptly after the Closing a loan production and
servicing office located in the metropolitan Boston area, to notify the
Borrowers as to the address and telephone number of such office, and to conduct
its business with Borrowers through personnel employed by Purchaser and based at
such office in the metropolitan Boston area; provided that Purchaser shall
promptly provide such documents or information as to any such Person's ownership
and management structure that shall be reasonably requested by Seller.
ARTICLE VIII
TERMINATION
Section 8.1. Termination. This Agreement may be terminated and
the Closing may be abandoned at any time prior to the Closing Date:
(a) by mutual written consent of Seller and Purchaser;
(b) by either Seller or Purchaser, if there has been a breach
on the part of the other party of any representation, warranty or
agreement contained herein which cannot be or which has not been cured
within 30 days after written notice by the Purchaser to Seller (or by
Seller to Purchaser) of such breach; provided that Purchaser may not
terminate this Agreement pursuant to this clause on the basis of any
breach by Seller of its representations and warranties contained in
Section 4.2 unless the cost to Purchaser to remedy, or, if remedy is
impracticable, the adverse effects on the Assets affected by such
breach caused by, all such breaches exceeds five percent (5%) of the
Purchase Price (provided that in determining such cost Purchaser shall
not include any cost in excess of the Loan Purchase Price for the Asset
to which such breach relates) and provided further that Seller may not
terminate this Agreement pursuant to this Section 8.1(b) on the basis
of any breach by Purchaser unless such breach constitutes a failure of
the conditions precedent to Closing that entitles Seller to prevent the
Closing pursuant to the proviso contained in Section 6.2;
(c) by Seller, on the earlier of (i) May 1, 1996, but only if
the stockholders of Boston Bancorp have not approved the Merger on or
before April 30, 1996; or (ii) the date that is five Business Days
after the date on which the stockholders of Boston Bancorp voted to
disapprove the Merger; or by Purchaser, if Seller has removed Assets
from the Closing Schedule pursuant to Section 7.9(iii) and (v) the
aggregate Loan Purchase Price of which exceeds five percent (5%) of the
Purchase Price.
(d) by either party if the Closing has not occurred by June
13, 1996 unless such party seeking to terminate has breached its
obligation under this Agreement.
Section 8.2. Effect of Termination.
(a) Termination under Sections 8.1(a), 8.1(c) or 8.1(d). In
the event of termination of this Agreement pursuant to Section 8.1(a),
(c) or (d), this Agreement shall forthwith become void and of no effect
other than as otherwise provided herein and there shall be no liability
on the part of any party hereto or their respective officers,
directors, agents or representatives; provided that the provisions of
Section 2.5 and Section 5.9 shall survive such termination, and the
Deposit and accrued interest thereon shall be returned to Purchaser as
provided in Section 5.2.
(b) Termination under Section 8.1(b) by Seller. In the event
of a termination of this Agreement by Seller pursuant to Section
8.1(b), this Agreement shall forthwith become void and of no effect
other than as otherwise provided herein and there shall be no liability
on the part of any party hereto; provided that the Deposit and accrued
interest thereon shall be retained by Seller (after notice and lapse of
time as described below) as full, complete liquidated damages, the
parties hereto having concluded that a precise measure of damages for
such a termination will be difficult to calculate and determine. Seller
shall notify Purchaser that Seller has terminated the Agreement
pursuant to Section 8.1(b) and specify the grounds for such
termination, and Purchaser shall have five (5) Business Days after
receipt of such notice to notify Seller that Purchaser disputes such
termination, such notice to state the grounds for such dispute by
Purchaser. If Purchaser does not so notify Seller that a dispute exists
and the grounds therefor within such five (5) Business Day period,
Purchaser agrees that Seller shall have the right to retain the Deposit
and accrued interest thereon. If Purchaser sends such a notice of a
dispute to Seller within the five (5) Business Day period, Seller shall
continue to hold such funds as the Deposit in accordance with this
Agreement until such time as the dispute has been resolved. The Deposit
and accrued interest thereon shall then be disbursed in accordance with
the resolution of the dispute. The successful party shall be reimbursed
for all expenses, including reasonable attorneys' fees, incurred in
connection with any successful action brought under this Section
8.2(b).
(c) Termination under Section 8.1(b) by Purchaser. In the
event of a termination of this Agreement pursuant to Section 8.1(b) by
Purchaser, this Agreement shall forthwith become void and of no effect
other than as otherwise provided herein and there shall be no liability
on the part of any party hereto; provided that the Deposit with accrued
interest thereon shall be returned to Purchaser (after notice and lapse
of time as described below). If Purchaser has terminated this Agreement
pursuant to the provisions of Section 8.1(b) (including the first and
second provisos therein) because of a breach of a representation and
warranty contained in Section 4.2 by Seller, Purchaser's sole remedy
therefor shall be the return of the Deposit and accrued interest
thereon. If Purchaser has terminated this Agreement because of a breach
of a representation and warranty contained in Section 4.1 or of any
obligation of Seller hereunder, Purchaser may pursue all its remedies
provided in Section 9.2. Purchaser shall notify Seller that Purchaser
has terminated this Agreement pursuant to Section 8.1(b) and specify
the grounds for such termination, and Seller shall have five (5) days
after receipt of such notice to notify Purchaser that it disputes such
termination, such notice to state the grounds for such dispute. If
Seller does not so notify Purchaser that a dispute exists and the
grounds therefor within such five (5) day period, Seller shall pay the
Deposit and accrued interest thereon to Purchaser. If Seller sends such
a notice of dispute to Purchaser within the five (5) day period, Seller
shall continue to hold the Deposit in accordance with this Agreement
until such time as the dispute has been resolved. The Deposit and
accrued interest thereon shall then be disbursed in accordance with the
resolution of the dispute. The successful party shall be reimbursed for
all expenses, including reasonable attorneys' fees, incurred in
connection with any successful action brought under this Section
8.2(c). Purchaser shall have no right to Consequential Damages. In no
event shall Purchaser have the right to offset amounts due it under
this Section 8.2(c) or under any other contract or agreement with
Seller or any Affiliate of Seller.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES,
INDEMNIFICATION AND SPECIAL REMEDIES
Section 9.1. Survival. Each and every representation, warranty
and covenant made by Purchaser or Seller in this Agreement, shall survive the
Closing in accordance with Section 11.9; provided that no party to this
Agreement shall have any remedy for the breach of any representation, warrant or
covenant contained in this Agreement except as provided in Section 7.9, Article
VIII or this Article IX. For the purpose of this Article IX, Seller and
Purchaser shall be deemed to have remade all of its representations and
warranties contained in this Agreement at the Closing with the same effect as if
originally made thereat (it being understood that representations and warranties
that speak as of a specified date shall continue to speak as of the date so
specified).
Section 9.2. Seller's Indemnification Covenants. Seller shall
indemnify, save and keep Purchaser and its successors and permitted assigns
harmless against and from all liabilities, demands, claims, actions or causes of
action, assessments, losses, fines, penalties, costs, damages and expenses,
including reasonable attorneys' and expert witness fees, sustained or incurred
by Purchaser as a result of arising out of or by virtue of:
(a) The inaccuracy of any representation or warranty made by
Seller to Purchaser in Section 4.1 of this Agreement; or
(b) The breach by Seller of any of the covenants or agreements
of this Agreement to be performed by it;
provided, that (i) any loss resulting from any activities of Purchaser or its
agents (other than activities in accordance with this Agreement) shall not be
indemnified by Seller, and (ii) any and all indemnifiable claims shall be
limited to the amount of actual damages, including reasonable hedge costs and
third party due diligence costs (but excluding any and all other special,
consequential, punitive or incidental damages and any damages in respect of cost
of capital or loss of business reputation, collectively, "Consequential
Damages"), sustained by the indemnified party, net of the dollar amount of any
insurance proceeds recovered by the indemnified party with respect to such
losses.
Section 9.3. Special Remedies for Seller's Breach of Certain
Representations and Warranties Regarding the Assets. Seller's breach of any of
its representations and warranties contained in Section 4.2 shall entitle
Purchaser upon the occurrence of the Closing to those special remedies (and only
those special remedies) described in Section 9.5, subject to the procedural and
other limitations on such remedies specified therein.
Section 9.4. Purchaser's Indemnification Covenants. Purchaser
shall indemnify, save and keep Seller, and its successors and assigns, harmless
against and from all liabilities, demands, claims, actions or causes of action,
assessments, losses, fines, penalties, costs, damages and expenses, including
reasonable attorneys' and expert witness fees, sustained or incurred by Seller
as a result of or arising out of or by virtue of:
(a) The inaccuracy of any representation or warranty made by
Purchaser to Seller herein;
(b) The breach by Purchaser of any of the covenants or
agreements of this Agreement to be performed by it; or
(c) Any and all liabilities arising out of the tortious or
unlawful acts or omissions of Purchaser in regard to any Asset from and
after the Closing Date.
provided, that (i) any loss resulting from any activities of
Seller or its agents (other than activities in accordance with this
Agreement) shall not be indemnified by Purchaser, and (ii) any and all
indemnifiable claims shall be limited to the amount of actual damages
(including third party due diligence costs but excluding Consequential
Damages) sustained by the indemnified party, net of the dollar amount
of any insurance proceeds recovered by the indemnified party with
respect to such losses.
Section 9.5. Purchaser's Rights to Special Remedies;
Procedures, Time Limitations and Certain Other Matters.
(a) Breaches Entitling Purchaser to Remedy. In the event of
the breach of any representation or warranty relating to an Asset under
Section 4.2 of this Agreement, Purchaser shall have the right, subject
to the provisions of this Section 9.5, to require Seller to provide,
and Seller, subject to such provisions, shall provide, a remedy, as
more fully described in Section 9.5(d) hereof; provided that for
purposes of Purchaser's remedy for a breach of the representation
contained in Section 4.2(r), in determining the existence of a breach
such representation shall be read as if no reference to Seller's
knowledge or to the Environmental Reports were contained therein; and
provided, further, that a remedy relating to an Asset shall be
available under this Section 9.5 only if (i) the Closing has occurred;
and (ii) the aggregate cost incurred or reasonably likely to be
incurred by Purchaser to remedy, or, if remedy is impracticable, the
adverse effect on the Asset affected by such breach caused by, all such
breaches with respect to such Asset exceeds the greater of (x) ten
percent (10%) of the Loan Purchase Price up to a maximum of $75,000 and
(y) $20,000 and (iii) the aggregate amount paid by Seller under this
Section 9.5 (including the amount sought as a remedy) is less than the
Purchase Price minus all amounts paid pursuant to Section 9.2; and
provided, further, that such remedy shall be the exclusive remedy after
Closing for a breach of any representation or warranty contained in
Section 4.2 by Seller; and provided, further, that, if the Seller has
failed to provide Purchaser with an Environmental Report with respect
to an Asset within 180 days after the Closing Date (a "Delivery
Breach"), Purchaser shall be entitled to require Seller to provide the
remedy provided in Section 9.5 (d) (ii) with respect to such Asset
without regard to clause (ii) of the immediately preceding proviso but
subject to clause (iii) of such proviso.
(b) Form of Notice Required to Seek Remedy. In order to claim
any remedy under this Section 9.5, Purchaser must deliver to Seller a
Notice of Claim setting forth:
(i) the identity of the Asset with respect to which
breach of a representation or warranty is alleged to have
occurred;
(ii) a reasonably detailed description of the claimed
breach, including reasonably detailed information about the
cost to remedy such breach; and
(iii) the section and subsection of this Agreement
under which such breach is claimed.
(c) Time Limitations on Purchaser's Ability to Seek Remedy.
The Notice of Claim must be delivered no later than the first
anniversary of the Closing Date; provided that any Notice of Claim that
relates to a claim of a breach of the representation and warranty
contained in Section 4.2(r) with respect to an Unreviewed Mortgaged
Property must be delivered no later than 90 days after the Closing
Date.
Failure by Purchaser to provide a Notice of Claim to Seller containing
the required information with respect to any claimed breach as provided
herein within the time limitations provided shall for all purposes
terminate and waive any rights of Purchaser to any remedy for such
breach under this Agreement.
(d) Remedies. If Purchaser is entitled to a remedy, Seller
shall, except with respect to a Delivery Breach (which shall require
Seller to provide the remedy in clause (ii) hereof), at its option:
(i) Take action sufficient to eliminate or cure the
breach referred to in the Notice of Claim; or
(ii) Repurchase for the Repurchase Price the Asset to
which the Notice of Claim relates pursuant to the provisions
of Section 9.5(g).
(e) Procedure for Seller's Election of Remedy. Within 60 days
of Seller's receipt of a Notice of Claim, Seller shall notify
Purchaser:
(i) That the existence of any breach entitling
Purchaser to a remedy is disputed, in which event Seller shall
state the basis for such dispute, including, if appropriate
and available, evidence that no such breach exists; or
(ii) That Purchaser is entitled to a remedy, in which
event Seller shall specify the remedy that it intends to
provide.
(f) Time Periods in Which Seller Must Provide Remedy. Seller
shall provide its selected remedy within the following time periods:
(i) The cure of any breach pursuant to Section
9.5(d)(i) shall be provided within 90 days of Seller's receipt
of the Notice of Claim, it being understood and agreed that,
should Seller fail to achieve such a cure within this 90-day
period, Seller shall repurchase the Asset involved pursuant to
the provisions of Section 9.5(g) no later than 45 days
following expiration of such 90-day period; and
(ii) Seller shall repurchase any Asset that it elects
to repurchase pursuant to Section 9.5(g)(ii) within 90 days of
Seller's receipt of the Notice of Claim.
(g) Repurchase Procedures.
(i) Repurchase. If Seller elects or is obligated to
repurchase any Asset, on the Repurchase Date Seller shall pay
to Purchaser by check the Repurchase Price and Purchaser shall
convey to Seller all of Purchaser's right, title and interest
in and to such Asset and any related Collateral Property.
(ii) Determination of the Repurchase Price. The
Repurchase Price shall equal:
(A) the Loan Purchase Price for such Asset plus
any Additional Advances made with respect thereto; plus
(B) (i) the amount of interest paid by Purchaser
to Seller pursuant to Section 2.3(b)(ii) and (ii)
unless such Loan was a Past Due Loan as of January 31,
1996, interest on the amount set forth in clause (A)
above at the interest rate on the Note relating to such
Asset in effect on the Closing Date from the Closing
Date to the Repurchase Date; plus
(C) all out-of-pocket amounts paid by Purchaser
in respect of such Asset in conformity with customary
servicing practices from the Closing Date to the
Repurchase Date together with interest thereon from
time to time at the interest rate on the Note relating
to such Asset in effect on the Closing Date from the
date any such amount was paid; minus
(D) all amounts received by Purchaser in respect
of such Asset from the Closing Date to the Repurchase
Date (other than insurance or condemnation proceeds
required by law or the Loan Documents to be paid and
paid by the Purchaser to the Borrower or applied to
repairs or restoration), together with interest thereon
from time to time at the interest rate on the Note
relating to such Asset in effect on the Closing Date
from the date on which the amount was received (other
than interest on any Loan that was a Past Due Loan as
of January 31, 1996, which interest shall be retained
by Purchaser); minus
(E) the Offset Amount as determined pursuant to
the provisions of Section 9.5(g)(v).
(iii) Transfer Documentation; Further Assurances;
Transfer and Recordation Taxes and Fees. Transfer of the
Asset, including any related Collateral Property, shall be
effected by the execution and delivery by Purchaser of
documents substantially similar to those by which such Asset
and any such related Collateral Property were transferred to
Purchaser. Purchaser shall execute and deliver any and all
such additional assignments, instruments of transfer and other
documents as Seller may reasonably require in order to
complete the transactions contemplated hereunder. Seller shall
be responsible for, and shall pay when due and payable, all
transfer, filing and recording fees and taxes, costs and
expenses, and any state or county documentary taxes, if any,
with respect to the filing or recording of any document or
instrument contemplated hereby in connection with such
repurchase, and shall be responsible for recording any
documents evidencing the transfers contemplated in connection
with such repurchase.
(iv) Conditions to Seller's Obligation to Repurchase.
Seller's obligation to repurchase any Asset (but not any other
remedy) shall, except as noted below, be conditioned on such
Asset being in the same condition as when such Asset was
conveyed by Seller to Purchaser, meaning that:
(A) The physical condition of the Collateral
Property shall be the same (normal wear and tear
excepted) as it was on the Closing Date, other than (i)
for deterioration in such physical condition for which
Purchaser provides an Offset Amount and (ii) in respect
of a fully insured casualty loss or condemnation, in
which event the insurance and/or condemnation proceeds
shall be assigned to Seller;
(B) The substantive rights under the Loan shall
not have been impaired from those conveyed to
Purchaser;
(C) The condition of title to the Asset and all
related Collateral Property shall be substantially the
same as conveyed to Purchaser.
(D) Reserved.
(E) There shall be no claim of any party against
Seller that is the result of any action or inaction of
Purchaser or any agent, successor or assign of
Purchaser other than any claim as to which such Seller
shall have received an indemnification in form and
substance acceptable to Seller from a party whose
financial condition is satisfactory to Seller for the
purposes of such indemnification.
(v) Offset Amount. The "Offset Amount" shall be that
amount necessary accurately and reasonably to compensate
Seller for the loss in value resulting from any defect or
condition of or relating to any Asset to be repurchased
hereunder (other than a defect or condition which results
solely from an action, inaction or fault of Seller) which did
not exist when such Asset was transferred to Purchaser,
provided such defect or condition is attributable to the
action, inaction or fault of Purchaser or its successors or
permitted assigns. In particular, without limiting the
generality of the foregoing, the Offset Amount shall include,
but not be limited to, any decrease in the value of the Asset
to be repurchased attributable to:
(A) Any failure to service or manage the Asset in
accordance with applicable law and prudent loan
servicing standards for similar commercial loans,
including any such failure that results in the
inability or failure of Purchaser to reconvey any
Collateral Property in the same condition (normal wear
and tear excepted) as such property was in on the date
of its transfer to Purchaser, determined as provided in
Section 9.5(g)(iv); or
(B) The inability or failure of Purchaser to
transfer the Asset to Seller without any encumbrances
other than those encumbrances in existence on the
Closing Date.
Notwithstanding the foregoing, in the event Purchaser
disagrees with Seller's determination of the Offset Amount,
Purchaser shall so notify Seller, and Purchaser and Seller
shall promptly and in good faith attempt to resolve by mutual
agreement Purchaser's disagreement with the Offset Amount. In
the event Purchaser and Seller are unable to resolve
Purchaser's dispute, the matter shall be finally settled by
arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect.
Within ten (10) days of the arbitrator's decision if such
decision results in a reduction of the Offset Amount, the
amount by which the Offset Amount is reduced shall be remitted
to Purchaser.
(vi) Repurchase of Assets Within a Cross-Collateralized
Loan Group. If Seller repurchases any Asset included in a
Cross-Collateralized Loan Group, Seller shall repurchase, and
Purchaser shall transfer to Seller, all other Assets included
in such Cross-Collateralized Loan Group and all other Loans,
if any, that are cross-collateralized by any Loan within the
Cross-Collateralized Loan Group.
Section 9.6. Cooperation. Subject to the provisions of Section
9.8, a party against whom a claim for indemnification has been asserted (an
"Indemnifying Party") shall have the right, at its own expense, to participate
in the defense of any claim, action or proceeding brought by a third party (a
"Third Party Claim") which resulted in said claim for indemnification, and if
said right is exercised, the parties shall cooperate in the defense of said
action or proceeding.
Section 9.7. Subrogation. The Indemnifying Party shall not be
entitled to require that any action be brought against any other person before
action is brought against it hereunder by the party being indemnified hereunder
("Indemnified Party") and shall not be subrogated to any right of action until
it has paid in full or successfully defended against the claim for which
indemnification is sought and shall be subrogated to any such right of action
once it has been paid in full or successfully defended against the claim for
which indemnification is sought.
Section 9.8. Third Party Claims. Immediately following the
receipt of notice of a Third Party Claim, the party receiving the notice of the
Third Party Claim shall notify the other party of its existence. Subject to the
remaining provisions of this Section 9.8, if an Indemnified Party is entitled to
indemnification against a Third Party claim, the Indemnified Party shall have
the right, without prejudice to its right of indemnification hereunder, in its
discretion exercised in good faith and upon the advice of counsel, to defend
against and settle any litigation, at such time and upon such terms as the
Indemnified Party deems fair and reasonable, provided that at least ten (10)
days prior to any such settlement, written notice of its intention to settle is
given to the Indemnifying Party. As long as the Indemnified Party retains its
right to defend and (except as hereinafter provided) settle a Third Party Claim
as hereinabove provided, the Indemnified Party shall be reimbursed by the
Indemnifying Party for the reasonable attorneys' fees and other expenses of
defending the Third Party Claim which are incurred from time to time,
immediately following the presentation to the Indemnifying Party of itemized
bills for said attorneys' fees and other expenses. The Indemnified Party may
also at any time, upon reasonable notice, tender the defense of a Third Party
Claim to the Indemnifying Party. Notwithstanding the foregoing, if:
(a) the defense of a Third Party Claim is so tendered and such
tender is accepted without qualification by the Indemnifying Party; or
(b) after the date on which written notice of a Third Party
Claim has been given pursuant to this Section 9.8, the Indemnifying
Party shall acknowledge without qualification its indemnification
obligations as provided in this Section 9.8 in writing to the
Indemnified Party;
then the Indemnified Party shall not have the right to defend or settle such
Third Party Claim and the Indemnifying Party shall have the sole right to
consent, defend, litigate and settle the Third Party Claim, and all expenses
(including without limitation attorney's fees) incurred by the Indemnifying
Party in connection therewith shall be paid by the Indemnifying Party. The
Indemnified Party shall have the right to be represented by counsel at its own
expense in any such contest, defense, litigation or settlement conducted by the
Indemnifying Party, provided that the Indemnified Party shall be entitled to
reimbursement therefor if the Indemnifying Party shall lose its right to defend
and settle as herein provided. Notwithstanding the foregoing, the Indemnifying
Party shall lose its right to defend and settle the Third Party Claim if it
shall fail to diligently contest the Third Party Claim. So long as the
Indemnifying Party has not lost its right and/or obligation to defend and settle
as herein provided, the Indemnifying Party shall have the exclusive right, in
its discretion exercised in good faith, and upon the advice of counsel, to
settle any such matter either before or after the initiation of litigation, at
such time and upon such terms as it deems fair and reasonable, provided that at
least ten (10) days prior to any such settlement, written notice of its
intention to settle shall be given to the Indemnified Party. No failure by an
Indemnifying Party to acknowledge in writing its indemnification obligations
under this Article IX shall relieve it of such obligations to the extent they
exist.
Section 9.9. Remedy. Any party to this Agreement entitled to
indemnification under this Article IX may pursue its right to indemnification
against any indemnitor without the necessity of seeking remedies first against
any other indemnitor or any other person.
ARTICLE X
NOTICES
Section 10.1. Notices. Unless otherwise provided for herein,
all notices and other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered, if sent
by registered or certified mail (return receipt requested), (b) when delivered,
if delivered personally, (c) when transmitted, if sent by facsimile during
business hours on a Business Day if a confirmation of transmission is produced
by the sending machine or (d) when delivered, if sent by overnight mail or
overnight courier, in each case to the parties at the following addresses or
facsimile numbers (or at such other addresses or facsimile numbers as shall be
specified by like notice):
(a) If to Seller, at
South Boston Savings Bank
460 West Broadway
Boston, Massachusetts 02127
Attention: Gregory F. Shaw, Senior Vice President
Fax: (617) 269-5354
with a copy (which shall not constitute notice) to:
Ropes & Gray
One International Place
Boston, MA 02110
Attention: Mark V. Nuccio, Esq.
Fax: (617) 951-7050
(b) If to Purchaser, at
BlackRock Capital Finance L.P.
345 Park Avenue, 30th Floor
New York, NY 10154
Attention: Randal A. Nardone
Fax: (212) 407-5678
with a copy (which shall not constitute notice) to:
Thacher Proffitt & Wood
Two World Trade Center
New York, NY 10048
Attention: George Petrow, Esq.
Fax: (212) 912-7751
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication within any corporation or firm to the persons designated to
receive copies shall in no way adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other communication.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Severability. Each part of this Agreement is
intended to be severable. If any term, covenant, condition or provision hereof
is finally determined by a court of competent jurisdiction to be unlawful,
invalid, or unenforceable for any reason whatsoever, and such illegality,
invalidity, or unenforceability does not effect the remaining parts of this
Agreement, then all such remaining parts hereof shall be valid and enforceable
and shall have full force and effect as if the invalid or unenforceable part had
not been included.
Section 11.2. Amendment. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
Section 11.3. Waiver. Any term, condition or provision of this
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof.
Section 11.4. Headings. The headings contained in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
Section 11.5. Construction. Unless the context otherwise
requires, singular nouns and pronouns, when used herein shall be deemed to
include the plural of such noun or pronoun, pronouns of one gender shall be
deemed to include the equivalent pronoun of the other gender and references to a
particular Section or Exhibit or Schedule shall be deemed to mean the particular
Section of this Agreement or Exhibit or Schedule attached hereto, respectively.
Section 11.6. Assignment. This Agreement and the terms,
covenants, conditions, provisions, obligations, undertakings, rights and
benefits hereof, including the Exhibits and schedules hereto, shall be binding
upon, and shall inure to the benefit of, the undersigned parties and their
successors and permitted assigns. Purchaser shall not assign its rights under
this Agreement, whether by operation of law or otherwise, to any other party
without the prior written consent of Seller; provided that, without the consent
of Seller, Purchaser may (i) absolutely assign its rights hereunder to one or
more of its Affiliates or to one institutional trustee that will issue
securities in a trust that holds title to the Assets or to one single purpose
issuer that will issue mortgage-backed securities relating to the Assets and
(ii) collaterally assign its rights hereunder to an entity providing Purchaser
with financing for purchase of the Assets (or refinancing thereof); and
provided, further, that no such assignment shall relieve Purchaser of its
obligations to pay the Purchase Price or to perform any other obligation
specified herein.
Section 11.7. Prior Understandings; Integrated Agreement.
Other than the Confidentiality Agreement and the Due Diligence Deposit
Agreement, both entered into between the Purchaser and Seller prior to the date
hereof, this Agreement supersedes any and all prior discussions and agreements
(written or oral) among Seller and Purchaser with respect to the purchase of the
Loans and other matters contained herein, and this Agreement contains the sole,
final and complete expression and understanding among Seller and Purchaser with
respect to the transactions contemplated herein.
Section 11.8. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall constitute one and the same
instrument, and either party hereto may execute this Agreement by signing any
such counterpart.
Section 11.9. Survival. Each and every representation and
warranty and covenant hereinabove made by Purchaser or Seller shall survive the
Closing and shall not merge into any document executed as part of the Closing,
but instead shall be independently enforceable except to the extent expressly
limited herein. Each of such representations and warranties in Sections 4.1 and
4.2 shall survive the Closing but shall terminate on the first anniversary of
the Closing Date; provided that the representation and warranty contained in
Section 4.2(r) insofar as it applies to an Unreviewed Mortgaged Property shall
expire on the date that is 90 days after the Closing Date.
Section 11.10. Governing Law. This Agreement shall be
construed, and the rights and obligations of Seller and Purchaser hereunder
determined or relating hereto or arising hereunder, in accordance with the laws
of The Commonwealth of Massachusetts without regard to principles of conflicts
of laws.
Section 11.11. Jurisdiction; Venue. For the purposes of any
suit, action or proceeding involving this Agreement, Purchaser hereby expressly
submits to the jurisdiction of all federal and state courts sitting in The
Commonwealth of Massachusetts and consents that any order, process, notice of
motion or other application to or by any such court or a judge thereof may be
served within or without such court's jurisdiction by registered mail or by
personal service, provided that a reasonable time for appearance is allowed, and
Purchaser agrees that such courts shall have exclusive jurisdiction over any
such suit, action or proceeding commenced by either or both of said parties. In
furtherance of such agreements, Purchaser agrees upon the request of Seller to
discontinue (or agree to the discontinuance of) any such suit, action or
proceeding pending in any other jurisdiction.
Purchaser hereby irrevocably waives any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement brought in any federal or state court
sitting in The Commonwealth of Massachusetts and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 11.12. No Third Party Beneficiaries. No person, firm
or other entity other than the parties hereto, which for purposes of this
section shall be Seller and Purchaser (and its permitted successors and
permitted assigns), shall have any rights or claims under this Agreement except
as provided in the following sentence. No brokerage commission shall be payable
to any party in connection with the sale of the Loans except such sales
commissions as Seller may previously have agreed in writing to pay certain third
parties, which will be payable by Seller.
Section 11.13. Waiver of Trial by Jury. EACH OF PURCHASER AND
SELLER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the parties hereto have set their hand as of the
date first written above.
SOUTH BOSTON SAVINGS BANK
By: /s/ Gregory F. Shaw
---------------------------
Name: Gregory F. Shaw
Title: Senior Vice President
BLACKROCK CAPITAL FINANCE
L.P.
By: BlackRock Asset Investors
By: /s/ Randal A. Nardone
---------------------------
Name: Randal A. Nardone
Title: Vice President