1
================================================================================
EXHIBIT 10.T.3
FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P.,
as Depositor,
and
FINOVA CAPITAL CORPORATION,
as Loan Originator,
LOAN PURCHASE AGREEMENT
================================================================================
Dated as of September 1, 1998
2
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions...................................................1
ARTICLE II.
SALE OF LOANS; PAYMENT OF PURCHASE PRICE
Section 2.1 Sale of Loans to Depositor...................................1
Section 2.2 Obligations of Loan Originator...............................3
Section 2.3 Dispositions; Transfer Obligation............................4
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Loan Originator Representations and Warranties...............5
ARTICLE IV.
LOAN ORIGINATOR'S COVENANTS
Section 4.1 Covenants of the Loan Originator.............................5
ARTICLE V.
INDEMNIFICATION BY THE LOAN ORIGINATOR
Section 5.1 Indemnification..............................................6
Section 5.2 Limitation on Liability of the Loan Originator...............6
Section 5.3 Procedure....................................................7
Section 5.4 Defense of Claims............................................7
ARTICLE VI.
TERMINATION
Section 6.1 Termination..................................................8
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment....................................................8
Section 7.2 Governing Law................................................8
Section 7.3 Notices......................................................8
Section 7.4 Severability of Provisions...................................9
Section 7.5 Counterparts.................................................9
-i-
3
Section 7.6 Further Agreements...........................................9
Section 7.7 Intention of the Parties.....................................9
Section 7.8 Successors and Assigns; Assignment of Purchase Agreement ....9
Section 7.9 Survival....................................................10
Section 7.10 Successors and Assigns......................................10
EXHIBIT
Exhibit A Form of LPA Assignment
-ii-
4
LOAN PURCHASE AGREEMENT (the "Purchase Agreement"), dated as
of September 1, 1998, between FINOVA CAPITAL CORPORATION (the "Loan Originator")
and FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P. (the "Depositor").
W I T N E S S E T H
WHEREAS, the Loan Originator owns and from time to time
acquires Loans secured primarily by mortgages, deeds of trust and security deeds
on certain Mortgaged Properties and the Loan Documents related thereto;
WHEREAS, the parties hereto desire that on each Transfer Date
the Loan Originator sell all its right, title and interest in and to the Loans
and the related Loan Documents to Depositor pursuant to the terms of this
Purchase Agreement; and
WHEREAS, pursuant to the terms of a Trust and Servicing
Agreement, dated as of September 1, 1998 (the "Trust and Servicing Agreement"),
among FINOVA Commercial Mortgage Loan Owner Trust 1998-1, as Trust (the
"Trust"), the Depositor, the Loan Originator, Wilmington Trust Company, as Owner
Trustee (the "Owner Trustee"), FINOVA Capital Corporation, as Transfer Obligor,
and FINOVA Capital Corporation, as Servicer (the "Servicer") will sell,
transfer, assign and otherwise convey to the Trust all of its right, title and
interest in and to the Loans and related Loan Documents and this Purchase
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used but not
defined herein have the meanings assigned thereto in the Trust and Servicing
Agreement.
ARTICLE II.
SALE OF LOANS; PAYMENT OF PURCHASE PRICE
Section 2.1 Sale of Loans to Depositor. (a) On the terms and
conditions of this Purchase Agreement, on each Transfer Date, the Loan
Originator, in consideration of the partnership interests which it is receiving
in the Depositor and the other consideration described below, agrees to offer
for sale and sell Loans and deliver the related Loan Documents to or at the
direction of the Depositor. To the extent the Depositor has or is able to obtain
sufficient funds for the purchase thereof, the Depositor agrees to purchase such
Loans offered for sale by the Loan Originator.
(b) The price paid by the Depositor for the Loans sold on
each Transfer Date (the "Sale Price") shall be equal to the aggregate Purchase
Value with respect to the Loans conveyed on such date, subtracting any
Overcollateralization Shortfall as of such date.
5
(c) On each Transfer Date, the Loan Originator shall convey
to the Depositor the Loans and the other property and rights related thereto
described in the related LPA Assignment, the Depositor shall cause the deposit
of cash in the amount of the Sale Price in the Advance Account, and the Servicer
shall, promptly after such deposit, withdraw the Sale Price deposited in respect
of applicable Additional Class A Certificate Principal Balance from the Advance
Account, and distribute such amount to or at the direction of the Loan
Originator, only upon the satisfaction of each of the following conditions on or
prior to such Transfer Date:
(i) the Loan Originator shall have delivered to the Trust, the
Depositor and the Initial Class A Certificateholder duly executed
Assignments, which shall have attached thereto a Loan Schedule setting
forth the appropriate information with respect to all Loans conveyed on
such Transfer Date and shall have delivered to the Initial Class A
Certificateholder a computer readable transmission of such Loan
Schedule;
(ii) the Loan Originator shall have deposited in the
Collection Account, all collections received with respect to each of
the Loans after but not including the applicable Transfer Cutoff Date;
(iii) as of such date, neither the Loan Originator nor the
Depositor shall (A) be insolvent, (B) be made insolvent by its
respective sale of Loans or (C) have reason to believe that its
insolvency is imminent;
(iv) the Revolving Period shall not have terminated;
(v) the Loan Originator shall have delivered to the Initial
Class A Certificateholder the Due Diligence Packages for such Loans as
are to be transferred on such Transfer Date at least five Business Days
prior to such Transfer Date, and the Initial Class A Certificateholder
shall have completed its due diligence investigation of such Loans and
shall have approved, in its sole discretion, each such Loan;
(vi) the Loan Originator shall have delivered the Custodial
Loan File to the Custodian in accordance with the Custodial Agreement
and the Initial Class A Certificateholder shall have received a copy of
the Loan Schedule and Exceptions Report reflecting such delivery;
(vii) each of the representations and warranties made by the
Loan Originator pursuant to Section 4.04 of the Trust and Servicing
Agreement with respect to the Loans shall be true and correct as of the
related Transfer Date with the same effect as if then made, and the
Loan Originator shall have performed all obligations to be performed by
it under each of the Basic Documents on and prior to such Transfer
Date;
(viii) the Loan Originator shall, at its own expense, on or
prior to the Transfer Date, indicate in its computer files that the
Loans identified in the related LPA Assignment have been sold to the
Depositor pursuant to this Purchase Agreement;
-2-
6
(ix) the Loan Originator shall have taken any action required
to maintain the ownership interest of the Depositor in the Owner Trust
Estate;
(x) no selection procedures believed by the Loan Originator to
be adverse to the interests of the Certificateholders shall have been
utilized in selecting the Loans to be conveyed on such Transfer Date;
(xi) the Loan Originator shall have provided the Depositor,
the Trust, the Owner Trustee and the Initial Class A Certificateholder
no later than two Business Days prior to such date, a Notice of
Additional Class A Certificate Principal Balance;
(xii) after giving effect to the Additional Class A
Certificate Principal Balance purchased on such date, the Class A
Certificate Principal Balance will not exceed the Maximum Class A
Certificate Principal Balance; and
(xiii) all conditions precedent to the Initial Class A
Certificateholder's purchase of Additional Class A Certificate
Principal Balance pursuant to the Certificate Purchase Agreement shall
have been fulfilled as of such date.
(d) Subject to Section 7.7 hereof, the parties hereto intend
that each of the conveyances contemplated hereby be sales from the Loan
Originator to the Depositor of all of the Loan Originator's right, title and
interest in and to the Loans and other property described above. In the event
the transactions set forth herein are deemed not to be a sale, the Loan
Originator hereby grants to the Depositor a security interest in all of the Loan
Originator's right, title and interest in, to and under the Loans and other
property described above, whether now existing or hereafter created, to secure
all of the Loan Originator's obligations hereunder; and this Purchase Agreement
shall constitute a security agreement under applicable law.
Section 2.2 Obligations of Loan Originator.
(a) On or prior to the Closing Date and each Transfer Date,
the Initial Class A Certificateholder shall have received evidence satisfactory
to it of (i) the completion of all recordings, registrations and filings as may
be necessary or, in the reasonable opinion of the Initial Class A
Certificateholder, desirable to perfect or evidence the assignment by the Loan
Originator to the Depositor of the Loan Originator's ownership interest in the
Owner Trust Estate including, without limitation, the Loans and related property
and the proceeds thereof, and (ii) the completion of all recordings,
registrations and filings as may be necessary or, in the reasonable opinion of
the Initial Class A Certificateholder, desirable to perfect or evidence the
assignment by the Depositor to the Trust of the Depositor's ownership interest
in the Owner Trust Estate including, without limitation, the Loans and the
proceeds thereof. The Loan Originator agrees to file all necessary continuation
statements and any amendments to the UCC-1 financing statements required to
reflect a change in the name or corporate or partnership structure of the Loan
Originator, Depositor or Trust and to file any additional UCC-1 financing
statements required due to a change in the principal office of the Loan
Originator, Depositor or Trust as are necessary to perfect the interest of the
Depositor and the Trust in and to the Owner Trust Estate and to take such other
action as may be necessary or, in
-3-
7
the reasonable opinion of the Depositor or the Initial Class A
Certificateholder, desirable to perfect or evidence the Depositor's and Trust's
interest in the Loans and Loan Documents conveyed under the Basic Documents.
(b) In connection with each sale of a Loan hereunder, the
Loan Originator shall deliver to, and deposit with the Custodian, on behalf of
the Owner Trustee, as assignee of the Depositor, on or before the related
Transfer Date the Custodial Loan File with respect to each Loan conveyed on such
Transfer Date.
It is understood and agreed that the obligations set forth in
this Section 2.2(b) shall survive delivery of the respective Custodial Loan
Files to the Custodian and shall inure to the benefit of the Certificateholders,
the Depositor, the Servicer, and the Owner Trustee, for the benefit of the
Trust.
With respect to any Loans which are set forth as exceptions
in the Loan Schedule and Exceptions Report, the Loan Originator shall cure such
exception, repurchase such Loan or provide a Qualified Substitute Loan in
accordance with Sections 3.05 and 4.05 of the Trust and Servicing Agreement. The
obligations of the Loan Originator set forth in Sections 3.05 and 4.05 of the
Trust and Servicing Agreement to cure any breach or to substitute for or
repurchase an affected Loan shall constitute the sole remedies available
hereunder to the Depositor respecting a breach of the Loan Originator's
obligations contained in this Section 2.2(b).
(c) In connection with each sale of a Loan hereunder, the
Loan Originator shall deliver to, and deposit with the Servicer, as assignee of
the Depositor, on or before the related Transfer Date the Servicer's Loan File
with respect to each Loan conveyed on such Transfer Date.
(d) The Loan Originator hereby further confirms to the
Depositor that, on or prior to each Transfer Date it shall cause the portions of
the Loan Originator's electronic ledger relating to the Loans to be clearly and
unambiguously marked to indicate that the Loans have been sold to the Depositor.
(e) On and after each Transfer Date, the Depositor shall own
the Loans which have been identified as being sold to the Depositor under
Section 2.1 hereof and the Loan Originator shall not take any action
inconsistent with such ownership and shall not claim any ownership interest in
any such conveyed Loan.
Section 2.3 Dispositions; Transfer Obligation.
(a) In consideration of the consideration received from the
Depositor under this Purchase Agreement, the Loan Originator hereby agrees and
covenants that in connection with each Disposition it shall perform such duties
as specified in Section 4.06 of the Trust and Servicing Agreement.
-4-
8
(b) In consideration of the consideration received from the
Depositor under this Purchase Agreement, the Loan Originator hereby agrees and
covenants that it shall perform the duties of Transfer Obligor under the Trust
and Servicing Agreement.
ARTICLE III.
REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Loan Originator Representations and Warranties.
(a) The Loan Originator makes each of the representations and warranties to the
Depositor as of the Closing Date and as of each Transfer Date as are set forth
in Section 4.02 of the Trust and Servicing Agreement.
(b) The Loan Originator further makes each of the
representations and warranties as of each Transfer Date as are set forth in
Section 4.04 of the Trust and Servicing Agreement with respect to the Loans
conveyed on such Transfer Date.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
respective Custodial Loan Files to the Custodian (as the agent of the Trust) and
shall inure to the benefit of the Certificateholders, the Depositor, the
Servicer, the Owner Trustee and the Trust. Upon the discovery by the Servicer,
the Custodian, the Loan Originator, the Depositor or any Certificateholder that
any of the representations and warranties of the Loan Originator in Sections
4.02 and 4.04 of the Trust and Servicing Agreement are determined to be untrue
in a manner that materially and adversely affects the value of the Loans, or the
interests of the Certificateholders in, any Loan with respect to which such
representation or warranty is made and the Loan Originator shall fail to cure
such breach within the time period specified in Section 4.05 of the Trust and
Servicing Agreement, the Loan Originator shall be obligated to repurchase or
substitute the affected Loan(s) in accordance with the provisions of Sections
3.05 and 4.05 of the Trust and Servicing Agreement promptly upon receipt of
written instructions from the Majority Certificateholders. The obligations of
the Loan Originator set forth in Sections 3.05 and 4.05 of the Trust and
Servicing Agreement to cure any breach or to substitute for or repurchase an
affected Loan shall constitute the sole remedies available hereunder to the
Depositor respecting a breach of the representations and warranties contained in
this Section 3.1(b).
ARTICLE IV.
LOAN ORIGINATOR'S COVENANTS
Section 4.1 Covenants of the Loan Originator. The Loan
Originator hereby covenants that except for the sales hereunder, the Loan
Originator will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any lien on, any Loan, or any
interest therein; and the Loan Originator will defend the right, title and
-5-
9
interest of the Trust, as assignee of the Depositor, in, to and under the Loans,
against all claims of third parties claiming through or under the Loan
Originator.
Whenever and so often as requested by the Depositor or the
Initial Class A Certificateholder, the other party promptly will execute and
deliver or cause to be executed and delivered all such other and further
instruments, documents, or assurances, and promptly do or cause to be done all
such other things, as may be necessary and reasonably required to vest more
fully in the requesting party all rights, interests, powers, benefits,
privileges and advantages conferred or intended to be conferred upon it by this
Purchase Agreement.
ARTICLE V.
INDEMNIFICATION BY THE LOAN ORIGINATOR
Section 5.1 Indemnification. The Loan Originator agrees to
indemnify and hold harmless the Depositor and the Certificateholders, as the
ultimate assignees from the Depositor (each an "Indemnified Party"), from and
against any loss, liability, expense, damage, claim or injury arising out of or
based on (i) any breach of any representation, warranty or covenant of the Loan
Originator, the Servicer or their Affiliates, in this Purchase Agreement or any
other Basic Document, including, without limitation, the origination or prior
servicing of the Loans by reason of any acts, omissions, or alleged acts or
omissions arising out of activities of the Loan Originator, the Servicer or
their Affiliates, and (ii) any untrue statement by the Loan Originator, the
Servicer or its Affiliates of any material fact or any such Person's failure to
state a material fact necessary to make such statements not misleading with
respect to any such Person's statements contained in this Purchase Agreement or
any other Basic Document, including, without limitation, any Officer's
Certificate, statement, report or other document or information prepared by any
such Person and furnished or to be furnished by it pursuant to or in connection
with the transactions contemplated thereby including, without limitation, such
written information as may have been and may be furnished in connection with any
due diligence investigation with respect to the Loans or any such Person's
business, operations or financial condition, including reasonable attorneys'
fees and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; provided that the Loan
Originator shall not indemnify an Indemnified Party if such loss, liability,
expense, damage or injury is due to either an Indemnified Party's willful
misfeasance, bad faith or negligence or by reason of an Indemnified Party's
reckless disregard of its obligations hereunder; provided, further, that the
Loan Originator shall not be so required to indemnify an Indemnified Party or to
otherwise be liable to an Indemnified Party for any losses in respect of the
performance of the Loans, the creditworthiness of the Borrowers under the Loans,
changes in the market value of the Loans or other, similar investment risks
associated with the Loans or for any losses arising from a breach of any
representation or warranty set forth in Section 3.1(a) or (b) hereof, a remedy
for the breach of which is provided in Section 3.1(c) hereof. The provisions of
this indemnity shall run directly to and be enforceable by an Indemnified Party
subject to the limitations hereof.
Section 5.2 Limitation on Liability of the Loan Originator.
None of the directors or trustees or officers or employees or agents of the Loan
Originator shall be under
-6-
10
any liability to the Depositor or the Certificateholders, it being expressly
understood that all such liability is expressly waived and released as a
condition of, and as consideration for, the execution of this Purchase
Agreement. Except as expressly provided herein and in the other Basic Documents,
the Loan Originator shall not be under any liability to the Trust, the Owner
Trustee or the Certificateholders. The Loan Originator and any director or
officer or employee or agent of the Loan Originator may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
Section 5.3 Procedure. With respect to a claim subject to
indemnity hereunder made by any Person against an Indemnified Party (a "Third
Party Claim"), such Indemnified Party shall notify the Loan Originator in
writing of the Third Party Claim within a reasonable time after receipt by such
Indemnified Party of written notice of the Third Party Claim unless the Loan
Originator shall have previously obtained actual knowledge thereof. Thereafter,
the Indemnified Party shall deliver to the Loan Originator, within a reasonable
time after the Indemnified Party's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnified Party relating to
the Third Party Claim. No failure to give such notice or deliver such documents
shall effect the rights to indemnity hereunder.
Section 5.4 Defense of Claims. If a Third Party Claim is made
against an Indemnified Party, (a) the Loan Originator will be entitled to
participate in the defense thereof and, (b) if it so chooses, to assume the
defense thereof with counsel selected by the Loan Originator, provided that in
connection with such assumption (i) such counsel is not reasonably objected to
by the Indemnified Party and (ii) the Loan Originator first admits in writing
its liability to indemnify the Indemnified Party with respect to all elements of
such claim in full. Should the Loan Originator so elect to assume the defense of
a Third Party Claim, the Loan Originator will not be liable to the Indemnified
Party for any legal expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof. If the Loan Originator elects to assume the
defense of a Third Party Claim, the Indemnified Party will (i) cooperate in all
reasonable respects with the Loan Originator in connection with such defense and
(ii) not admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Loan Originator's prior written
consent, as the case may be. If the Loan Originator shall assume the defense of
any Third Party Claim, the Indemnified Party shall be entitled to participate in
(but not control) such defense with its own counsel at its own expense. If the
Loan Originator does not assume the defense of any such Third Party Claim, the
Indemnified Party may defend the same in such manner as it may deem appropriate,
including settling such claim or litigation after giving notice to the Loan
Originator of such terms and the Loan Originator will promptly reimburse the
Indemnified Party upon written request. Anything contained in this Purchase
Agreement to the contrary notwithstanding, the Loan Originator shall not be
entitled to assume the defense of any part of a Third Party Claim that seeks an
order, injunction or other equitable relief or relief for other than money
damages against an Indemnified Party unless the Loan Originator has demonstrated
to such Indemnified Party reasonable financial capacity to meet its obligations
with respect to such Third Party Claim.
-7-
11
ARTICLE VI.
TERMINATION
Section 6.1 Termination. The respective obligations and
responsibilities of the Loan Originator and Depositor created hereby shall
terminate, except for the Loan Originator's and Depositor's indemnity
obligations as provided herein, upon the termination of the Trust as provided in
Article XVI of the Trust and Servicing Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment. This Purchase Agreement may be amended
from time to time with the prior written consent of the Majority
Certificateholders, in their sole discretion, by a written agreement signed by
the Loan Originator and the Depositor.
Section 7.2 Governing Law. This Purchase Agreement shall be
governed by and construed in accordance with the laws of the State of New York
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 7.3 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt thereof if (i) personally delivered or mailed by registered mail,
postage prepaid, or (ii) transmitted by facsimile (with a copy delivered by
overnight courier) upon telephone confirmation of receipt of such transmission,
as follows:
(a) if to the Loan Originator:
FINOVA Capital Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
or, such other addresses, facsimile numbers and confirmation numbers as may
hereafter be furnished to the Depositor in writing by the Loan Originator.
(b) if to the Depositor:
FINOVA Realty Capital Warehouse Funding, L.P.
c/o FINOVA Warehouse Funding Inc.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-8-
12
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
or such other addresses, facsimile numbers and confirmation numbers as may
hereafter be furnished to the Loan Originator in writing by the Depositor.
Section 7.4 Severability of Provisions. If any one or more of
the covenants, agreements, provisions of terms of this Purchase Agreement shall
be held invalid for any reason whatsoever, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Purchase Agreement and shall in no way
affect the validity of enforceability of the other provisions of this Purchase
Agreement.
Section 7.5 Counterparts. This Purchase Agreement may be
executed in one or more counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original and such counterparts, together, shall constitute one and the same
agreement.
Section 7.6 Further Agreements. The Loan Originator and the
Depositor each agree to execute and deliver to the other such amendments to
documents and such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Purchase Agreement
or in connection with the offering of securities representing interests in the
Loans.
Section 7.7 Intention of the Parties. It is the intention of
the parties, other than for federal, state and local income and franchise tax
purposes, that the Depositor is purchasing, and the Loan Originator is selling,
the Loans rather than pledging the Loans to secure a loan by the Depositor to
the Loan Originator. The parties hereto each intend to treat the transaction for
accounting purposes as a sale by the Loan Originator, and a purchase by the
Depositor, of the Loans. The Depositor will have the right to review the Loans
and the related Loan Files to determine the characteristics of the Loans which
will affect the federal income tax consequences of owning the Loans and the Loan
Originator will cooperate with all reasonable requests made by the Depositor in
the course of such review.
Section 7.8 Successors and Assigns; Assignment of Purchase
Agreement. The Agreement shall bind and inure to the benefit of and be
enforceable by the Loan Originator, the Depositor, the Owner Trustee and the
Certificateholders. The obligations of the Loan Originator under this Purchase
Agreement cannot be assigned or delegated to a third party without the consent
of the Depositor, which consent shall be at the Depositor's sole discretion,
except that the Depositor acknowledges and agrees that the Loan Originator may
assign its obligations hereunder to any Person into which the Loan Originator is
merged or any
-9-
13
corporation resulting from any merger, conversion or consolidation to which the
Loan Originator is a party or any Person succeeding to the business of the Loan
Originator. The parties hereto acknowledge that the Depositor is acquiring the
Loans for the purpose of contributing them to the Trust that will issue the
Certificates representing undivided interests in such Loans. As an inducement to
the Depositor to purchase the Loans, the Loan Originator acknowledges and
consents to the assignment by the Depositor to the Trust of all of the
Depositor's rights against the Loan Originator pursuant to this Purchase
Agreement and to the enforcement or exercise of any right or remedy against the
Loan Originator pursuant to this Purchase Agreement by the Owner Trustee, for
the benefit of the Trust, under the Trust and Servicing Agreement. Such
enforcement of a right or remedy by the Owner Trustee, for the benefit of the
Trust, shall have the same force and effect as if the right or remedy had been
enforced or exercised by the Depositor directly.
Section 7.9 Survival. The representations and warranties set
forth in Article III and the provisions of Article V shall survive the purchase
of the Loans hereunder.
Section 7.10 Successors and Assigns. This Purchase Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
[SIGNATURE PAGE FOLLOWS]
-10-
14
IN WITNESS WHEREOF, the Loan Originator and the Depositor have caused
this Loan Purchase Agreement to be duly executed on their behalf by their
respective officers thereunto duly authorized as of the day and year first above
written.
FINOVA REALTY CAPITAL WAREHOUSE
FUNDING, L.P.,
as Depositor
By: FINOVA WAREHOUSE FUNDING INC., as
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President - Assistant
Treasurer
FINOVA CAPITAL CORPORATION,
as Loan Originator
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President -
Treasurer
15
THE STATE OF Arizona )
) ss.:
COUNTY OF Maricopa )
BEFORE ME, the undersigned authority, a Notary Public, on
this 29th day of September 1998 personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, known to me
to be a person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said FINOVA WAREHOUSE
FUNDING INC., the general partner of the Depositor, FINOVA REALTY CAPITAL
WAREHOUSE FUNDING, L.P., and that he executed the same as the act of such
corporation for the purpose and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 29th day of
September, 1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Notary Public, State of Arizona
16
THE STATE OF Arizona )
) ss.:
COUNTY OF Maricopa )
BEFORE ME, the undersigned authority, a Notary Public, on
this 29th day of September, 1998 personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me
to be a person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said FINOVA CAPITAL
CORPORATION, as the Loan Originator, and that he executed the same as the act of
such corporation for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 29th day of
September, 1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Notary Public, State of Arizona
17
EXHIBIT A
FORM OF LPA ASSIGNMENT
ASSIGNMENT NO.____ OF LOANS ("LPA Assignment"), dated
____________________ (the "Transfer Date"), by FINOVA CAPITAL CORPORATION, (the
"Loan Originator") to FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P. (the
"Depositor") pursuant to the Loan Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, the Loan Originator and the Depositor are the
parties to the Loan Purchase Agreement dated as of September 1, 1998 (the
"Purchase Agreement"), hereinafter as such agreement may have been, or may from
time to time be, amended, supplemented or otherwise modified;
WHEREAS, pursuant to the Purchase Agreement, the Loan
Originator wishes to sell, convey, transfer and assign Loans to the Depositor in
exchange for cash consideration and other good and valid consideration the
receipt and sufficiency of which is hereby acknowledged; and
WHEREAS, the Depositor is willing to acquire such Loans
subject to the terms and conditions hereof and of the Purchase Agreement;
NOW THEREFORE, the Loan Originator and the Depositor hereby
agree as follows:
1. Defined Terms. All capitalized terms defined in the
Purchase Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
2. Designation of Loans. The Loan Originator does hereby
deliver herewith a Loan Schedule containing a true and complete list of each
Loan to be conveyed on the Transfer Date. Such list is marked as Schedule A to
this LPA Assignment and is hereby incorporated into and made a part of this LPA
Assignment.
3. Conveyance of Loans. The Loan Originator hereby sells,
transfers, assigns and conveys to the Depositor, without recourse, all of the
right, title and interest of the Loan Originator in and to the Loans and all
proceeds thereof listed on the Loan Schedule attached hereto, including all
interest and principal received by the Loan Originator, or the Servicer on or
with respect to the Loans on or after the related Transfer Cutoff Date (and
including Monthly Payments due on or after the related Transfer Cutoff Date but
received by the Loan Originator or the Servicer on or before the related
Transfer Cutoff Date and held for application on the related scheduled Due
Dates, but not including Monthly Payments due on
A-1
18
the Loans before the related Transfer Cutoff Date), together with all right,
title and interest in and to the proceeds of any related Insurance Policies.
4. Depositor Acknowledges Assignment. As of the Transfer
Date, pursuant to this LPA Assignment and Section 2.1(a) of the Purchase
Agreement, the Depositor acknowledges its receipt of the Loans listed on the
attached Loan Schedule and all other related property in the Trust Estate.
5. Acceptance of Rights But Not Obligations. The foregoing
sale, transfer, assignment, set over and conveyance does not, and is not
intended to, result in a creation or an assumption by the Depositor of any
obligation of the Loan Originator or any other Person in connection with this
LPA Assignment or under any agreement or instrument relating thereto except as
specifically set forth herein.
6. Loan Originator Acknowledges Receipt of Sale Price. The
Loan Originator hereby acknowledges receipt of the Sale Price or that is
otherwise distributed at its direction.
[TO BE INSERTED WHEN APPLICABLE] [7. Assignment of Certain
Swap Agreements. The Loan Originator hereby sells, transfers and assigns all of
its right title and interest in to and under, its rights and obligations and the
Depositor does hereby accept and assume all of the Loan Originator's rights and
obligations under the following confirmation(s) issued under that certain master
agreement between the Loan Originator and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc.
[ ] (the "Swap Agreement"); provided, that it is understood by the parties
hereto that the Trust, as ultimate owner of the Loans, shall assume and shall be
delegated all of Depositor's rights and obligations under the Swap Agreement.]
[7./8.] Conditions Precedent. The conditions precedent in
Section 2.1(c) of the Purchase Agreement have been satisfied.
[8./9.] Amendment of the Purchase Agreement. The Purchase
Agreement is hereby amended by providing that all references to the "Purchase
Agreement", "this Agreement" and "herein" shall be deemed from and after the
Transfer Date to be a dual reference to the Purchase Agreement as supplemented
by this LPA Assignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Purchase
Agreement shall remain unamended and the Purchase Agreement shall continue to
be, and shall remain, in full force and effect in accordance with its terms and
except as expressly provided herein, this LPA Assignment shall not constitute or
be deemed to constitute a waiver of compliance with or consent to noncompliance
with any term or provision of the Purchase Agreement.
[9./10.] Counterparts. This LPA Assignment may be executed in
any number of counterparts all of which taken together shall constitute one and
the same instrument.
A-2
19
IN WITNESS WHEREOF, the undersigned have caused this LPA
Assignment to be duly executed and delivered by their respective duly authorized
officers on the day and year first above written.
FINOVA CAPITAL CORPORATION,
as Loan Originator
By: _____________________________
Name:
Title:
FINOVA REALTY CAPITAL FUNDING, L.P.,
as Depositor
By: FINOVA Warehouse Funding Inc., the
General Partner of FINOVA REALTY
CAPITAL FUNDING, L.P.
By: _____________________________
Name:
Title:
A-3
20
SCHEDULE A
[LOAN SCHEDULE]