Common use of Existing Loan Clause in Contracts

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept the conveyance of the Property subject to the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing).

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At ClosingSeller and Buyer acknowledge that prior to the recordation of the Deed, Buyer shall accept the conveyance Property must be defeased pursuant to the requirements set forth in the Existing Loan documents (the “Defeasance Requirements”). The Defeasance Requirements provide for the substitution of the Property subject to (and the release of the lien securing the Existing LoanLoan on the Property) with U.S. government obligations purchased by or for Seller. Because of the Defeasance Requirements, includingBuyer’s cooperation will be necessary, without limitationand Buyer hereby agrees to (i) deposit all documents required by Buyer hereunder to be delivered at Closing, all liens securing its payment. If this Contract is still pendingwhich documents shall be fully executed, by and where required acknowledged, with Title Company no later than fifteen the Documents Delivery Date, at which time all conditions to Buyer’s obligation to close hereunder other than those set forth in Section 9.1(a), (15b), (c), (e), and (f) days after and in Section 13.1 shall be deemed satisfied, (ii) deposit the Effective Purchase Price, together with any additional sums due by Buyer hereunder, with the Title Company no later than 10:30 a.m. of that date which is one (1) Business Day prior to the Closing Date. Unless Seller and Buyer agree to an earlier time, upon expiration of the Review Period, and provided Buyer has not terminated this Contract, Seller shall use good faith, diligent efforts to cause Existing Lender on or prior to deliver to Buyer Closing (or for Seller to deliver to Buyeri) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan to release or irrevocably commit to releasing its servicer to process Buyer’s application liens encumbering the Property and pay all costs required by the holder of accept as collateral for the Existing Loan other replacement collateral in accordance with the Defeasance Requirements, and (ii) the Existing Loan documents and the lien of the mortgage or its servicer deed of trust encumbering the Property, and any other encumbrances related to the Existing Loan affecting the Property, be removed as exceptions to Buyer’s Title Policy (such costs collectively, the “Defeasance”). Buyer shall pay at Closing (i) the entire cost of all U.S. governmental obligations necessary to complete the Defeasance, less the then-accrued interest and outstanding principal balance owed on the Existing Loan, and (ii) all other costs and expenses of expenses, other than Seller’s own attorneys fees, payable by Seller in order to exercise and complete the holder of Defeasance, except for then-accrued interest and outstanding principal balance owed on the Existing Loan or its servicer to consider, investigate, process, approve (items in [i] and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, [ii] being sometimes collectively referred to as the “Assumption Defeasance Costs”); provided. The Defeasance Costs including, howeverwithout limitation, in no event shall the Assumption Costs include any servicing and processing fees, custodian fees, legal fees of the Existing Lender and its servicers and subservicers, accountants’ fees, brokers’ fees, successor borrower costs and fees to a third party advising or assisting Seller in the process of obtaining the Defeasance. Buyer shall engage a defeasance consultant reasonably acceptable to Seller (Wachovia being hereby approved) to coordinate the Defeasance and will cooperate with Seller’s performing of the Defeasance at no cost or expense to Seller, except for Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated attorneys fees. To the extent necessary to apply for and consummate the Defeasance, Buyer shall promptly advance upon request by Seller’s negotiation Seller all of the Assumption Documents or necessitated Defeasance Costs, other than those costs that are due upon completion of the Defeasance (which other costs shall be payable one [1] Business Day prior to Closing). It is acknowledged by Seller’s pursuit Seller and Buyer that the precise cost of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely the Defeasance may not be known on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract date that is one (i) Business Day prior to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If , and, therefore, Buyer agrees to deposit with the Assumption Documents require that Escrow Agent on such day the Defeasance Costs estimated at the time by the independent consultant engaged by Buyer or New Guarantor give representations or warranties to Existing Lender complete the Defeasance (with respect Buyer obligated to matters affecting pay any deficiency on the Property prior Closing Date and entitled to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible any surplus for all costs, fees and expenses incurred or payable as a result an overpayment of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expensesestimated Defeasance Costs). Buyer’s foregoing indemnity regarding agreement to pay all of the Assumption Defeasance Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests Contract occurring after the expiration of the Existing Loan shall each be Permitted Exceptions (as Review Period. Notwithstanding anything contained herein to the contrary, if Closing does not occur and this Contract is terminated due to a default by Seller, the Defeasance process shall be terminated and Seller shall reimburse Buyer for all Defeasance Costs incurred or accrued up to the Assumption Document date of termination. Furthermore, if Closing does not occur and this Contract is terminated for any other reason, the Defeasance process shall be terminated and Buyer shall be responsible only for those Defeasance Costs incurred or accrued up to be executed at Closing)the date of termination.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respectscomplete. To Seller’s Knowledge, neither Neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, and no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept assume the conveyance Existing Loan and shall pay all administrative fees, assumption fees and underwriting costs, if any, charged by the Existing Lender in connection with said assumption . Buyer acknowledges and understands that the Existing Loan includes a “lockout period” and may not be prepaid prior to September, 2009. Seller shall cooperate with Buyer in Buyer’s efforts related to the assumption of the Property subject to Existing Loan including executing such applications, certificates and other documents required by the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, Lender and providing any information required by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during in connection with the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan. Seller shall be responsible for the costs of its attorneys, includingand Buyer shall be responsible for the costs of its attorneys. In addition, without limitationBuyer shall be responsible for the cost, promptly furnishing and/or paying for all items required by if any, of Existing Lender’s attorneys, related to the holder assumption of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder any negotiation of the Existing Loan assumption documents or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer structure related to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)sale; provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees costs of Existing Lender’s counsel necessitated by Lender or Existing Lender attorneys directly related to Seller’s negotiation of the Assumption Documents assumption documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any the structure related to the assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be paid by the Assumption Document to be executed at Closing)Seller.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respectscomplete. To Seller’s Knowledge, neither Neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, and no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. At Closing, Buyer shall accept assume the conveyance Existing Loan and shall pay all administrative fees, assumption fees and underwriting costs, if any, charged by the Existing Lender in connection with said assumption . Buyer acknowledges and understands that the Existing Loan includes a “lockout period” and may not be prepaid prior to May, 2009. Seller shall cooperate with Buyer in Buyer’s efforts related to the assumption of the Property subject to Existing Loan including executing such applications, certificates and other documents required by the Existing Loan, including, without limitation, all liens securing its payment. If this Contract is still pending, Lender and providing any information required by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during in connection with the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan. Seller shall be responsible for the costs of its attorneys, includingand Buyer shall be responsible for the costs of its attorneys. In addition, without limitationBuyer shall be responsible for the cost, promptly furnishing and/or paying for all items required by if any, of Existing Lender’s attorneys, related to the holder assumption of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder any negotiation of the Existing Loan assumption documents or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer structure related to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)sale; provided, however, in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees costs of Existing Lender’s counsel necessitated by Lender or Existing Lender attorneys directly related to Seller’s negotiation of the Assumption Documents assumption documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any the structure related to the assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be paid by the Assumption Document to be executed at Closing)Seller.

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge's knowledge, neither there is no existing default on the part of Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. As used in this Agreement, or in any other agreement, document, certificate or instrument delivered by Seller to Buyer, the phrase "to Seller's knowledge", "to Seller's actual knowledge", "to the best of Seller's knowledge" or any similar phrase shall mean the actual, not constructive or imputed, knowledge of David C. Quade, Executive Vice President and Chief Financial Xxxxxxx xx Xxe Berkshire Group and Rick Ragsdale, Regional Operations Vice President, but withoxx xxx xxxxxxtion on their part to make any independent investigation of the matters being represented and warranted, or to make any inquiry of any other persons, or to search or examine any files, records, books, correspondence and the like. At Closing, Seller shall represent and warrant to Buyer shall accept by delivering to Buyer a certificate (the conveyance "Seller's Representation Certificate") certifying that all representations and warranties of Seller in this Agreement remain true and correct in all material respects as of the Property subject to the Existing Loan, including, without limitation, Closing Date and all liens securing its payment. If this Contract is still pending, by no later than fifteen (15) days after the Effective Date, Seller shall cause Existing Lender to deliver to Buyer (or for Seller to deliver to Buyer) a complete assumption and application, and thereafter Buyer shall, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required representations and warranties contained herein shall be deemed remade by the holder Seller effective as of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”)Closing Date; provided, however, that to the extent that Seller becomes aware of any facts or circumstances which would make a representation or warranty untrue in any material respect, Seller shall promptly deliver written notice to Buyer of such facts or circumstances after becoming aware of same (but in no event shall the Assumption Costs include any legal fees of Seller’s own counsel or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If ) and, the Assumption Documents require that Buyer Seller's Representation Certificate may be revised at Closing to make exception or New Guarantor give representations or warranties to Existing Lender qualification with respect to such matters affecting as may be necessary for such representations to remain true, but Buyer's agreement to allow such amendment of Seller's Representation Certificate shall not affect or indicate any waiver of any condition to Closing set forth in this Agreement, and Buyer may terminate this Agreement and receive the Property Deposit, if Seller fails, for any reason, to deliver Seller's Representation Certificate at Closing without any material change, except as to changes which are permitted or contemplated pursuant to Section 8 hereof. Buyer agrees to inform Seller promptly in writing if it discovers that any representation or warranty of Seller is inaccurate in any material respect, or if it believes that Seller has failed to deliver to Buyer any document or material which it is obligated to deliver hereunder. If Buyer notifies Seller prior to Closing that any representation or warranty made in Section 5 is not true and correct in any material respect and Seller fails to cure or remedy the same prior to Closing, Buyer may either (a) except as otherwise set forth in this paragraph, terminate this Agreement and the Deposit shall be returned to Buyer, and neither party shall have further rights or obligations pursuant to this Agreement, except for Buyer's obligation to repair any damage to the Property and to indemnify Seller as set forth in Section 6.01; or (b) waive any such representation or warranty and such principals of Seller currently liable therefor close the transaction without any reduction in the Purchase Price. Notwithstanding the foregoing, Buyer shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed not have the right to Existing Lender as a result terminate this Agreement on account of a breach thereofof a Seller representation or warranty to the extent that, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result the end of the Assumption Costs and complying with the requirements Inspection Period, Buyer discovers or learns of the Existing Loan for an assumptioninformation (from whatever source, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing).including,

Existing Loan. Seller represents and warrants to Buyer that the Existing Loan is the only indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete in all material respects. To Seller’s Knowledge, neither Seller nor any guarantor is in default or breach of any provisions of the documents evidencing the Existing Loan and, to Seller’s Knowledge, no event or circumstance has occurred or exists which but for the passage of time would be a default under the Existing Loan. (i) At Closing, Buyer shall accept Purchaser agrees to acquire the conveyance of the Property Subject Interests subject to the Loan and the Loan Documents. In this regard, the purchase and sale contemplated hereunder requires the approval of Lender. In connection with such approval, Purchaser agrees to (a) notify Seller in writing within five (5) business days after the Effective Date of the name of the entities or persons to assume the obligations of Gazit Senior Care, Inc., a Florida corporation and ROICO Holdings, L.P., a Delaware limited partnership (collectively, the “Existing LoanPrincipals”) arising from and after Closing under that certain Agreement of Principals dated January 10, including2006 to and in favor of Lender (the “Agreement of Principals”), without limitationwith such assumption as between Seller and Purchaser (and expressly not Lender) to be subject to a Recourse Contribution Agreement (as defined herein) between Seller and Purchaser, (b) submit a transfer/assumption application (the “Application”) which appears complete on its face to Lender or its servicer, together with all applicable application fees (provided however, if that the transaction contemplated by this Agreement closes, all liens securing its payment. If this Contract is still pendingsuch fees and costs shall be paid eighty percent (80%) by Purchaser and twenty percent (20%) by Seller), by no later than fifteen within two (152) business days after the Effective Date, and provide Seller shall cause Existing with written notice of submission of such Application and evidence of submission of the Application and application fees simultaneously with delivery of the same to Lender or its servicer, (c) promptly furnish to deliver Lender or its servicing agent and Seller such other information, financial or otherwise, as may be reasonably requested by Lender or its servicing agent or counsel following Purchaser’s initial submission of the Application, (d) proceed with diligence and use commercially reasonable efforts to Buyer obtain Lender’s approval of Purchaser’s acquisition of the Subject Interests at the earliest possible date, (or for e) keep Seller to deliver to Buyer) a complete assumption and applicationtimely apprised of the status thereof, and thereafter Buyer shall(f) provide Seller with copies of all correspondence between Lender and Purchaser relating to the Application, at its sole cost and expense, during the pendency of this Contract use diligent, commercially reasonable efforts, in cooperation with Seller, to facilitate Buyer’s assumption of the Existing Loan, including, without limitation, promptly furnishing and/or paying for all items required by the holder of the Existing Loan or its servicer to process Buyer’s application and pay all costs required by the holder of the Existing Loan or its servicer (such costs and all other costs and expenses of the holder of the Existing Loan or its servicer to consider, investigate, process, approve and document the transaction contemplated by this Contract, including all application, underwriting, legal, rating agency and assumption fees, being sometimes collectively referred to as the “Assumption Costs”); provided, however, in no event shall the Assumption Costs include that Purchaser may redact any legal fees of Seller’s own counsel financial or legal fees of Existing Lender’s counsel necessitated by Seller’s negotiation of the Assumption Documents or necessitated by Seller’s pursuit of an exchange contemplated by Section 16.14 hereof. In addition, any assumption fee based solely on the amount of the Existing Loan need not be paid until Closing. Such efforts by Buyer shall include causing Buyer’s rights under this Contract to be assigned by no later than Closing to a single purpose entity or other special purpose entity as required by the holder of the Existing Loan or its servicer and causing an appropriate guarantor (“New Guarantor”) to become a guarantor of any non-recourse carveouts and environmental indemnitees of the Existing Loan in place and stead of the principals of Seller from and after the Closing Date. If the Assumption Documents require that Buyer or New Guarantor give representations or warranties to Existing Lender with respect to matters affecting the Property prior to Closing, Seller and such principals of Seller currently liable therefor shall indemnify, defend and hold harmless Buyer and New Guarantor from all claims from Existing Lender and all damages, costs and expenses owed to Existing Lender as a result of a breach thereof, provided that the representations and warranties so made are limited to reasonable matters affecting the Property prior to Closing. Except as expressly provided in this Section 4.4, Buyer, and not Seller, shall be responsible for all costs, fees and expenses incurred or payable as a result of the Assumption Costs and complying with the requirements of the Existing Loan for an assumption, and Buyer hereby agrees to indemnify, defend and hold harmless Seller from all of said costs, fees and expenses. Buyer’s foregoing indemnity regarding the Assumption Costs shall survive Closing and any termination of this Contract. The liens, assignments and security interests of the Existing Loan shall each be Permitted Exceptions (as shall be the Assumption Document to be executed at Closing)proprietary information contained therein.