TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit
10.48
THIS TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered
into as of the 31st day of March, 2010, by and among the Federal Deposit Insurance Corporation as
Receiver and Successor-In-Interest to Silverton Bank, N.A. (“Assignor”), and Campus Crest Loan
Servicing, LLC, an Alabama limited liability company (“Assignee”).
WHEREAS, on February 29, 0000, Xxxxxxxxx Xxxx, X.X., a national banking association (the
“Bank”) made that certain loan to Campus Crest at Mobile, LLC, an Alabama limited liability
company, Campus Crest at Jacksonville, AL, LLC, an Alabama limited liability company, Campus Crest
at Nacogdoches, LP, a Delaware limited partnership, Campus Crest at Abilene, LP, a Delaware
limited partnership, Campus Crest at Greeley, LLC, a Delaware limited liability company, and
Campus Crest at Ellensburg, LLC, a Delaware, limited liability company (collectively, “Borrower”),
in the principal amount of $104,000,000 (the “Loan”), as evidenced by those certain documents
described in Exhibit “A” attached hereto (the “Loan Documents”), and secured by certain
real property located in Mobile County, Alabama, Xxxxxxx County, Alabama, Nacogdoches County,
Texas, Xxxxxx County, Texas, Weld County, Colorado, Kittitas County, Washington and certain other
collateral; and
WHEREAS, on February 29, 2008, the Bank entered into those certain Sub-Participation
Agreements with those parties listed on Exhibit “B” attached hereto (the “Participants”),
pursuant to which the Participants purchased a 100% interest (the “Participation Interest”) in the
Loan (collectively, the “Sub-Participation Agreements”); and
WHEREAS, on May 1, 2009, the Office of the Comptroller of the Currency closed the Bank,
placed the Bank in receivership and appointed Assignor as receiver of the Bank, thus granting to
Assignor all rights and powers as receiver pursuant to the F.D.I. Act, including 12 U.S.C. Section
1821, and all other applicable state and federal laws; and
WHEREAS, the Participants have formed Assignee for the purpose of acquiring the Loan and the
servicing rights associated therewith (the “Servicing Rights”); and
WHEREAS, Assignor now desires to transfer and assign to Assignee, and Assignee desires to
assume all of Assignor’s right, title, and interest in and to the Loan, the Loan Documents, the
Servicing Rights and all of the duties and obligations associated therewith.
NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. In consideration of Four Thousand and 00/100 Dollars ($4,000.00) to be paid
contemporaneously herewith by Assignee to Assignor, Assignor hereby ASSIGNS, TRANSFERS, CONVEYS,
SELLS and DELIVERS to Assignee, and its successors and assigns, “as-is”, “where-is”, without
recourse, covenant, representation, or warranty of any kind or nature, express or implied, all
of Assignor’s right, title and interest, if any, in and to (1) the Loan, including any and all
notes, instruments or writings evidencing or constituting the Loan, including but not limited to
those described in Exhibit “A” attached hereto, (2) the Servicing
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Rights, and (3) any and all liens, encumbrances, security interests, collateral or other
interests securing same, and any guaranties and other interests to which Assignor is entitled by
virtue of any ownership of the Loan, whether or not noted on Exhibit “A” (herein
collectively referred to as the “Security”), but (a) only to the extent that such secures the Loan
or the payment thereof, and not to the exclusion of the rights of Assignor or third parties to the
Security to the extent that it secures indebtedness not assigned hereby and (b) exclusive of any
foreclosed property.
2. Assignee hereby assumes all of the duties and obligations of Assignor as set forth in the
Loan Documents, from and after the Effective Date, including, but not limited to, the collection
of monies and any and all decisions concerning the servicing of the Loan and any related security
and guaranties, acceleration, foreclosure, acquisition of other security or guaranties, deficiency
judgments, purchase at foreclosure sales, and administration and disposition of acquired security.
3. Each of the parties hereto hereby covenants and agrees that it has or will execute and
deliver such other instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Agreement, including the delivery by
Assignor to Assignee, if in Assignor’s possession, of the original Loan Documents, all other
documents evidencing or securing the Loan, and any notices or other documents or instruments which
may be required in order to effectuate the purposes of this Agreement.
4. Assignor and Assignee each represent and warrant to the other that each is fully aware of
the terms contained in this Agreement and has voluntarily and without coercion or duress of any
kind entered into this Agreement.
5. Assignor and Assignee each represent and warrant to the other that: (a) all necessary
corporate action to be taken in connection with the execution, delivery and performance of this
Agreement has been duly taken, and (b) the execution, delivery and performance of this Agreement
does not constitute a violation or breach of its organizational documents or any other agreement
or law by which it may be bound.
6. If any conflict between the provisions of this Agreement and the provisions of the Loan
Documents arises, the provisions of this Agreement shall prevail. All other provisions of the Loan
Documents will remain in effect.
7. Assignee hereby releases, acquits and forever discharges Assignor, the Federal Deposit
Insurance Corporation, and Silverton, and their respective officers, directors, principals,
members, managers, agents, servants, employees, attorneys, representatives, affiliates, heirs,
successors and assigns from any and all claims, third party claims, liabilities, demands, losses,
judgments, actions, suits, causes of action, accountings, agreements, rights, damages, punitive
damages and interest, direct or derivative, known or unknown, xxxxxx or inchoate, from the
beginning of the world through and including the date of this Agreement as a result of,
concerning, arising from, or with respect to any and all matters, dealings, occurrences, actions,
failures to act, events, agreements, including without limitation those arising out of or in any
manner relating to the Loan, the Loan Documents or the Servicing Rights.
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8. This Agreement constitutes the entire and final agreement between the parties with
respect to the subject matter hereof, and there are no agreements, understandings, warranties or
representations among the parties except as set forth herein. This Agreement will inure to the
benefit of and bind the respective heirs, administrators, executors, representatives, successors
and permitted assigns of the parties hereto. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument. This Agreement may be executed by facsimile signature and each
such signature shall be treated in all respects as having the same effect as an original signature.
9. Neither this Agreement nor any of the provisions hereof can be changed, waived, discharged
or terminated, except by an instrument in writing signed by the parties against whom enforcement of the change, waiver, discharge or termination is sought.
10. This Agreement will be interpreted and construed under the laws of the State of Georgia and the United States of America, regardless of the domicile of any party,
and will be considered to have been made, executed and performed in Georgia.
[signatures
on following page]
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IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be duly executed
as of the date first set forth above.
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ASSIGNOR: Federal Deposit Insurance Corporation, as Receiver for Silverton Bank, N.A., Atlanta, Georgia |
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| By: | /s/ R. Xxxx Xxxxxxxx | |||
| Name: | R. Xxxx Xxxxxxxx | |||
| Title: | Post Closing Asset Manager | |||
| ASSIGNEE: Campus Crest Loan Servicing, LLC, an Alabama limited liability company By: Merchants and Farmers Bank of Xxxxxx County, Its Manager |
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| By: | /s/ Xxxxx X. Xxxxx, III | |||
| Xxxxx X. Xxxxx, III, Authorized Representative | ||||
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