LOAN SALE AGREEMENT BY AND BETWEEN FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF NETBANK, ALPHARETTA, GEORGIA AND LEAF FUNDING, LLC
BY
AND BETWEEN
FEDERAL
DEPOSIT INSURANCE CORPORATION
AS
RECEIVER OF NETBANK, ALPHARETTA, GEORGIA
AND
LEAF
FUNDING, LLC
TABLE
OF CONTENTS
Article
I
Definitions
1.
|
Definitions
|
1
|
Article
II
2.1.
|
Terms
and Conditions of Sale
|
10
|
2.2.
|
Closing
and Payment of Purchase Price
|
10
|
2.3.
|
Allocation
of Payments Made on Loans
|
10
|
2.4.
|
Adjustments
to Purchase Price; Offsets Against Deposits
|
10
|
2.5.
|
Rebates
and Refunds
|
11
|
2.6.
|
Interest
Conveyed
|
11
|
2.7.
|
Retained
Claims and Release
|
12
|
2.8.
|
Other
Taxes
|
12
|
Article
III
Transfer
of Loan(s), Collateral Documents and Servicing
3.1.
|
Delivery
of Documents
|
13
|
3.2.
|
Recordation
of Documents
|
16
|
3.3.
|
Transfer
of Servicing
|
16
|
Article
IV
Representation
and Warranties of Buyer
4.1.
|
Buyer's
Authorization
|
18
|
4.2.
|
Compliance
with Law
|
18
|
4.3.
|
Execution
and Enforceability
|
18
|
4.4.
|
Representations
Remain True
|
18
|
Article
V
Covenants,
Duties and Obligations of Buyer
5.1.
|
Servicing
of Loans
|
19
|
|
5.2.
|
Assumption
of Obligations
|
19
|
|
5.3.
|
Collection
Agency/Contingency Fee Agreements
|
19
|
|
5.4.
|
Insured
or Guaranteed Loans
|
19
|
|
5.5.
|
Buyer's
Due Diligence
|
20
|
|
5.6.
|
Reporting
to or for the Applicable Taxing Authorities
|
20
|
|
5.7.
|
Loans
in Litigation
|
20
|
|
5.8.
|
Loans
in Bankruptcy
|
21
|
i
5.9.
|
Loan
Related Insurance
|
22
|
5.10.
|
Loans
with Escrow Accounts and Security Deposits
|
22
|
5.11.
|
Loans
in which Seller was the Lead Lender in a Participated Loan
|
22
|
5.12.
|
Contracts
for Deed
|
22
|
5.13
|
Leases
|
22
|
5.14.
|
Files
and Records
|
22
|
5.15.
|
Reimbursement
for Use of Seller's Employees
|
23
|
5.16.
|
Notice
to Borrowers
|
23
|
5.17.
|
Notice
of Claim
|
24
|
5.18.
|
Use
of the FDIC's Name and Reservation of Statutory Powers
|
24
|
5.19.
|
Prior
Servicer Information
|
24
|
5.20.
|
Release
of Seller
|
24
|
5.21.
|
Indemnification
|
25
|
5.22.
|
Borrower
as Buyer
|
25
|
5.23.
|
Accounts
Payable/Brokerage Commissions
|
25
|
5.24.
|
Payment
of Taxes
|
26
|
5.25.
|
Assignment
of Servicing Agreements
|
26
|
5.26.
|
Purchase
of Platform-related Assets and Liabilities
|
26
|
Article
VI
Loans
Sold "As Is" and Without Recourse
6.1.
|
Loans
Sold "As Is"
|
27
|
6.2.
|
No
Warranties or Representations with Respect to Escrow Accounts
and
Security
Deposits
|
27
|
6.3.
|
No
Warranties or Representations as to Amounts of Unfunded
Principal
|
27
|
6.4.
|
Disclaimer
Regarding Calculation or Adjustment of Interest on any
Loan
|
27
|
6.5.
|
No
Warranties or Representations with Regard to Due Diligence
Data
|
27
|
6.6.
|
Buyer's
Waiver of Cause of Action
|
27
|
6.7.
|
Intervening
or Missing Assignments
|
28
|
6.8.
|
No
Warranties or Representations as to Documents
|
28
|
Article
VII
Repurchase
by Seller at Buyer's Option
7.1.
|
Repurchases
at Buyer's Option
|
29
|
7.2.
|
Securities
Laws Right of Rescission
|
30
|
7.3.
|
Defects
not Qualifying for Xxxxxxxxxx
|
00
|
7.4.
|
Notice
to Seller
|
30
|
7.5.
|
Re-delivery
of Note(s), Files and Documents
|
31
|
7.6.
|
Waiver
of Buyer's Repurchase Option
|
31
|
Article
VIII
Notices
ii
8.1.
|
Notices
|
32
|
8.2.
|
Article
VII Notice
|
32
|
8.3.
|
All
Other Notices
|
32
|
Article
IX
Forfeiture
of Xxxxxxx Money and Other Remedies
9.1.
|
Failure
to Close
|
34
|
Article
X
Miscellaneous
Provisions
10.1.
|
Severability
|
35
|
10.2.
|
Construction
|
35
|
10.3.
|
Survival
|
35
|
10.4.
|
Governing
Law
|
35
|
10.5.
|
Cost,
Fees and Expenses
|
35
|
10.6.
|
Nonwaiver,
Amendment and Assignment
|
35
|
10.7.
|
Drafting
Presumption
|
35
|
10.8.
|
Controlling
Agreement
|
35
|
10.9.
|
Venue
|
36
|
10.10.
|
Counterparts
|
36
|
10.11.
|
Waiver
of Jury Trial
|
36
|
10.12.
|
Incorporation
by Reference
|
36
|
Attachments
Attachment
"A"---Schedule of Loans
|
A-1
|
Attachment
"A-1"-Schedule of Loans
|
A-2
|
Attachment
“A-2”-Schedule of Inchoate Agreements
|
A-3
|
Attachment
"B"---Repurchase Percentages
|
B-1
|
Attachment
"C"---Xxxx of Sale
|
C-1
|
Attachment
"D"---Assignment and Assumption of Interests and
Obligations
|
D-1
|
Attachment
"E"---Assignment and Lost Instrument Affidavit
|
E-1
|
Attachment
"F"---Affidavit and Assignment of Claim
|
F-1
|
Attachment
"G"---Limited Power of Attorney
|
G-1
|
Attachment
“H”---Servicing Agreements
|
H-1
|
Attachment
“I”---Assignment of Leases
|
I-1
|
Attachment
“J”---Master Assignment of Certain Loans and Leases
|
J-1
|
iii
LOAN
POOL NUMBER: NBF-1-07-010
THIS
AGREEMENT, entered into this ___
day of November, 2007 by and between the Federal Deposit Insurance Corporation
("FDIC") as Receiver of NetBank, Alpharetta, Georgia (“Seller”) and LEAF
Funding, LLC ("Buyer") sets forth the terms and conditions whereby Seller agrees
to sell and Buyer agrees to purchase all those Loans set forth in the attached
Schedule of Loans for the consideration herein stated.
Definitions
For
purposes of this Agreement the
following terms shall have the meanings indicated:
"Accounting
Records" means the general ledger and supporting
subsidiary ledgers and schedules.
"Advances"
means the sum of all unreimbursed amounts advanced by or on behalf of the Failed
Bank, Seller or Buyer for the benefit of a Borrower or a third-party advanced
to
meet required scheduled payments, or to protect the Noteholder's lien position
or the Collateral, including payment of ad valorem taxes and hazard and forced
placed insurance as permitted by the terms of any Loan sold
hereunder. Advances do not include Disbursements of Principal or
Corporate Advances.
"Affidavit
and Assignment of
Claim" means an Affidavit and Assignment of Claim in the form of
Attachment "F" to this Agreement.
"Agreement"
means
this
Loan Sale Agreement and the Attachments hereto.
"Assignment
and Assumption of
Interests and Obligations" means an Assignment and Assumption of
Interests and Obligations in the form of Attachment "D" to this
Agreement.
"Assignment
and Lost Instrument
Affidavit" means an Assignment and Lost Instrument Affidavit in the
form of Attachment "E" to this Agreement.
"Attachment"
means any
of the attachments to this Agreement.
"Bank
Closing Date"
means the close of business of the Failed Bank on the date on which the
Chartering Authority closed such institution.
"Bid"
means the offer
to purchase one or more Loan Pool(s) that was submitted by Buyer and accepted
by
the Seller.
1
"Bid
Amount" means,
with respect to a Loan Pool, an amount equal to (i) the sum of the Book Values
for all Loans in a Loan Pool, multiplied by (ii) the corresponding Bid
Percentage.
"Bid
Award Date" means
the date the Bid Confirmation Letter is sent to Buyer by Seller.
“Bid
Certification”
means the document under such title provided to bidders and potential
bidders as part of the Bid Package and executed or assented to by Buyer in
connection with submitting a Bid.
"Bid
Confirmation
Letter" means the letter sent to Buyer by Seller confirming acceptance
of a Bid submitted by Buyer.
"Bid
Instructions"
means the document under such title provided to bidders and potential
bidders.
“Bid
Package” means
the documents that were provided to bidders and potential bidders for the sale
of the Loans, including but not limited to the following: (i)
Invitation to Bid, (ii) Bid Instructions, (iii) Bid Certification, (iv)
Purchaser Eligibility Certification, (v) this Agreement with all Attachments,
and (vi) Loan Spreadsheet(s), all as the same may be modified, amended, revised
or supplemented from time to time.
"Bid
Percentage" means
Buyer's offer, expressed as a percentage of Book Value, to purchase a Loan
Pool.
"Xxxx
of Sale" means a
Xxxx of Sale in the form of Attachment "C" to this Agreement.
“Book
Value” for Loans which are leases means the outstanding balance of
"gross lease receivables" and "gross lease residuals" net of "unearned discount"
as reflected on the books and records of NBBF as of the Calculation
Date.
"Book
Value" for Loans which are not
leases means a Loan's unpaid principal balance as stated on the books and
records of NBBF as of Bank Closing Date and adjusted by (i) subtracting payments
of principal received by Seller or its predecessor on or before the Calculation
Date (including any adjustments made as a result of a foreclosure sale on or
before the Calculation Date as to which the Redemption Period, if any, expired
on or before the Calculation Date), (ii) adding Disbursements of Principal
made
by Seller or its predecessor on or before the Calculation Date, and (iii) adding
back any principal previously charged or written off by NBBF. Book
Value for pre-computed interest Loans shall include, in addition, the amount
of
outstanding earned and unearned interest for such Loans. The Book
Value shall not include any general or specific reserves on the books and
records of NBBF.
"Borrower"
means any
obligor, guarantor or surety of any Loan or any other party liable for the
performance of obligations associated with any Loan.
2
"Business Day" means any day other than a Saturday, Sunday or federal
legal holiday.
"Calculation
Date"
means October 31, 2007, which date shall be used to calculate the Purchase
Price.
"Certificate
re Other Taxes"
means a certificate signed by the chief financial officer, chief
accounting officer or other executive officer with knowledge of tax matters,
or
the general counsel, of Buyer certifying that under the applicable laws of
(a)
each relevant Foreign Jurisdiction, (b) any jurisdiction in which Buyer, its
lending or other relevant office or agents may be located, or (c) any other
jurisdiction, (i) no Other Taxes are payable by Seller or Buyer, or
if any such Other Taxes are payable, certifying the type and amount of such
taxes, the party responsible for the payment thereof, the relevant taxing
authority to which payment of such Other Taxes must be made and the timing
for
such payment as required by applicable law, and (ii) no tax forms or other
information reports are required of the Seller, or if any such forms or reports
are required, certifying the type of form, the relevant taxing authority and
the
deadline for such form or other report.
"Chartering
Authority"
means (i) with respect to a national bank, the Office of the Comptroller of
the
Currency, (ii) with respect to a federal savings association or savings bank,
the Office of Thrift Supervision, (iii) with respect to a bank or savings
institution chartered by a state, the agency of such state charged with primary
responsibility for regulating and/or closing banks or savings institutions,
as
the case may be, (iv) the Corporation in accordance with 12 U.S.C. Section
1821(c), with regard to self appointment, or (v) the appropriate federal banking
agency in accordance with 12 U.S.C. 1821(c)(9).
"Closing"
means the simultaneous delivery by Seller and Buyer of documents and funds
and
the performance of the other acts herein provided to be performed on the Loan
Sale Closing Date in order to effect the consummation of the Loan
Sale.
"Collateral"
means
any
and all collateral securing a Loan, including without limitation, any accounts
receivable, inventory, property of any kind, whether real or personal (including
but not limited to equipment and other physical assets), and any contract and
other rights and interests of a Borrower pledged pursuant to or otherwise
subject to any Collateral Document. Collateral does not include collateral
which
has been foreclosed on or before the Calculation Date and the Redemption Period,
if any, has expired on or before the Calculation Date.
"Collateral
Document"
means each deed of trust, mortgage, assignment of production, security
agreement, assignment of security interest, personal guaranty, corporate
guaranty, letter of credit, pledge agreement, collateral agreement, loan
agreement or other agreement or document, whether an original or copy or whether
similar to or different from those enumerated, securing in any manner the
performance or payment by any Borrower of its obligations or the obligations
of
any other Borrower under any Note evidencing a Loan. Collateral
Document does not include a deed of trust, mortgage, assignment of production,
security agreement, assignment of security interest, pledge agreement or
collateral agreement insofar as the collateral encumbered by such agreement
has
been foreclosed under such agreement on or before the
Calculation
Date, and the Redemption Period, if any, has expired on or before the
Calculation Date.
3
"Confidentiality
Agreement"
means the confidentiality agreement executed or assented to by Buyer
in
anticipation of gaining access to the documents comprising the Bid
Package and other documents related to the sale of the Loans.
"Contract
for Deed"
means an executory contract with a third party to convey real
property.
"Corporate
Advances"
means the payment of appraisal fees, broker opinion fees, attorney fees and
associated legal fees, foreclosure fees, trustee fees, property inspection
fees,
property preservation and operating cost fees, tax penalties, title policies,
lien search fees or any other cost that can be directly associated with the
collection and servicing of a Note.
"Corporation"
means the Federal Deposit Insurance Corporation in its corporate
capacity.
"Deconversion
Date"
means the date Loan servicing records are transferred to the system
of
records of the Buyer of Pool NBF-1-07-020, which date shall be a Business Day
not later than sixty (60) calendar days after the Loan Sale Closing
Date.
"Deficiency
Balance"
means the remaining unpaid principal balance of any Note purchased hereunder
after crediting to it the proceeds of a foreclosure sale which occurred on
or
before the Calculation Date, and for which the Redemption Period, if any,
expired on or before the Calculation Date.
"Disbursement
of Principal"
means incremental funding of loan proceeds under a Note, such as in
the
case of a revolving credit loan or a construction loan.
“Xxxxxxx
Money Deposit”
means the monies paid by or on behalf of Buyer to Seller prior to
Loan
Sale Closing Date in the amount and manner specified in the Bid Instructions
contained in the Bid Package.
“Failed
Bank” means
any depository institution (i) which owned a Loan on the date on which the
Chartering Authority closed such institution and (ii) for which the Corporation
has been appointed Receiver.
"Foreign
Loan" means a
Loan regarding which the Borrower or any of the Collateral concerning the Loan
is located in a country other than the United States.
"Foreign
Jurisdiction"
means any country, other than the United States, and any subdivision
or
other jurisdiction of or in such other country in which a Borrower or any
Collateral is located.
4
“Inchoate
Agreements”
means those certain loans and leases set out in Attachment “A-2”
to
this Agreement. The Inchoate Agreements are commercial non-real
estate loans and equipment leases which, as of November 1, 2007 had not been
funded by NBBF, but which, prior to November 1, 2007 either (a) have been
formalized by the execution of loan, lease or other documents in which NBBF
is
lender, lessor or secured party, or (b) have been otherwise committed to or
in
the process of being committed to by NBBF as lender, lessor, or secured
party.
"Internal
Revenue
Code" means the Internal Revenue Code of 1986 of the United States, as
it may be amended from time to time.
“Invitation
to Bid”
means the document under such title provided to bidders and potential
bidders as part of the Bid Package.
"Limited
Power of
Attorney" means the Limited Power of Attorney in the form of Attachment
“G” to this Agreement.
"Loan(s)"
means and
includes: (a) any obligation evidenced by a Note or other evidence of
indebtedness; (b) all rights, powers, liens or security interests of Seller
in
or under the Collateral Document(s); (c) any judgment founded upon a note to
the
extent attributable thereto and any lien arising therefrom; (d) any Contract
for
Deed and the real property which is subject to such Contract for Deed; (e)
any
lease and the related leased property, including, but not limited to, in the
case of the purchase of Loan Pool NBF-1-07-010, those leases described in
Attachment “I” to this Agreement; (f) all right, title and interest in and to
any Deficiency Balance; and (g) any other asset or liability of whatever kind
or
type, all as identified on the attached Schedule of Loans, including without
limitation, all rights arising therefrom or appurtenant thereto. Loan(s) do
not
include repossessed or foreclosed collateral (i) which was foreclosed on or
before the Calculation Date and (ii) for which the Redemption Period, if any,
expired on or before the Calculation Date.
"Loan
File" means (i)
all Failed Bank documents pertaining to any Loan, either copies or originals,
that are in the possession of Seller excluding the Note, renewals of the Note
and Collateral Documents and (ii) any files with respect to a Loan established
and maintained by Seller's employee(s) or contractor(s) responsible for the
management of that Loan following the closing of the Failed Bank, excluding
Seller's internal memoranda and confidential communications between Seller
and
its legal counsel. The Loan File does not include other files maintained by
other employees or agents of Seller, such as Seller's legal
counsel.
"Loan
Pool(s)" means
one (or more) of the groups of Loans identified in the Schedule of
Loans.
"Loan
Sale" means the
sale of Loans of the Failed Bank by Seller as described in the Bid
Package.
5
"Loan
Sale Closing
Date" means a date selected by Seller, which date shall not be later
than ten (10) Business Days after the Bid Award Date.
“Loan
Spreadsheets”
means information on the Loans provided to bidders and potential
bidders as part of the Bid Package.
"Mortgaged
Property"
means the land, fixtures and improvements, if any, securing any Loan sold to
Buyer under the terms and conditions of this Agreement. Mortgaged
Property does not include property repossessed or foreclosed on or before the
Calculation Date as to which the Redemption Period, if any, expired on or before
the Calculation Date.
“NBBF”
means
NetBank
Business Finance, a division of NetBank, Alpharetta, Georgia.
"Non-Foreign
Loan"
means any Loan which is not a Foreign Loan.
"Non-Performing
Loan(s)" means any Loan which is not a lease, other than a Performing
Loan.
"Note"
means each
agreement, document and instrument evidencing a Loan, including without
limitation, each promissory note, loan agreement, shared credit or participation
agreement, inter-creditor agreement, letter of credit, reimbursement agreement,
draft, bankers' acceptance, transmission system confirmation of transaction
or
other evidence of indebtedness of any kind evidencing each Loan (including
loan
histories, affidavits, general collection information, correspondence and
comments pertaining to such obligation).
"Noteholder"
means
the
holder of a Note.
"Obligations"
means all obligations and commitments of Seller relating to a Loan and arising
under and in accordance with the relevant Note(s) or Collateral Documents
relating thereto, including without limitation the commitment to make advances
of funds to or for the benefit of a Borrower.
"Other
Taxes" means
any taxes, assessments, levies, imposts, duties, deductions, fees, withholdings
or other charges of whatever nature, including interest and penalties thereon,
required to be paid to any taxing authority of or in (a) any Foreign
Jurisdiction, (b) any jurisdiction in which Buyer, its lending or other relevant
office or agents may be located under the applicable laws of such Foreign
Jurisdiction or (c) any other jurisdiction, with respect to the sale and
transfer of the Loans, the Collateral Documents or the rights in the Collateral
or the assignment and assumption of Obligations thereunder, including without
limitation any withholding taxes payable by virtue of the sale of the Loans
at a
discount from Book Value and any value-added taxes. The term “Other
Taxes” does not encompass the defined term “Taxes.”
"Participated
Loan"
means any Loan subject to a shared credit, participation or similar
inter-creditor agreement under which the Failed Bank was lead or agent financial
depository institution or otherwise managed the credit or sold participations,
or under which the Failed Bank
was
a
participating financial depository institution or purchased participations
in a
credit managed by another.
6
"Platform-related
Assets and
Liabilities" means the assets and liabilities listed on Attachment
"A-1" to this Agreement.
"Performing
Loan"
means any Loan which is not a lease, for which the last payment of principal,
interest and any escrow amounts that is required to be paid by the terms of
the
Note or Collateral Documents is less than sixty days past due (for matured
loans, less than thirty days past due) as of the Calculation Date as shown
on
the Schedule of Loans attached hereto as Attachment "A," regardless of whether
such Loan is in a Loan Pool consisting primarily of Performing Loans or
consisting primarily of Non-Performing Loans.
"Property"
means the
real or personal property securing any Loan contained in a Loan
Pool. Property does not include property repossessed or
foreclosed on or before the Calculation Date as to which the Redemption Period,
if any, expired on or before the Calculation Date.
"Purchase
Price" means
an amount equal to the sum of (i) the Bid Amount, plus (ii) any
Advances made by NBBF, the Failed Bank or Seller, plus, as regards Loans which
are not leases (iii) Disbursements of Principal made by Seller that are not
included in the Book Value, plus (iv) interest calculated on the Book
Value and at the rate payable for each Performing Loan (except those with
pre-computed interest) from the interest "paid-to date" to, but not including,
the Loan Sale Closing Date, plus, as regards the Loans, (v) a credit for any
assumption of the liability for security deposits and escrow deposits as
provided in Section 5.10, plus (vi) a credit for any net liabilities
(liabilities less assets) assumed by Buyer pursuant to Sections 5.23 and 5.24,
and plus or minus, only in the event of the purchase of Loan Pool NBF-1-07-010
(vii) any debit or credit, as applicable, with respect to the Platform-related
Assets and Liabilities as set forth in Section 5.26. No amount with
respect to unpaid interest shall be due for Non-Performing Loans.
"Purchaser
Eligibility
Certification" means the document under such title provided to bidders
and potential bidders as part of the Bid Package and executed by Buyer in
connection with the Loan Sale.
“Receiver”
means
the
Federal Deposit Insurance Corporation as Receiver of NetBank.
"Redemption
Period"
means the applicable state statutory time period, if any, during which
a foreclosed owner may buy back foreclosed real property from the foreclosure
sale purchaser. Not all states provide for a Redemption
Period. The length of a Redemption Period may vary among the states
which do provide for a Redemption Period. The law of the state in
which the real property is located is the applicable law in determining whether
there is a Redemption Period and if so, how long it is.
7
"Related
Party" means
any party related to the Borrower in the manner delineated in 26 U.S.C.A 267(b)
and the regulations promulgated thereunder, as such law and regulations may
be
amended from time to time.
"Repurchase
Percentage"
means the Repurchase Percentage indicated on Attachment "B" to this
Agreement.
"Repurchase
Price"
means, with respect to any Loan, an amount equal to the sum of (i) the Bid
Amount, adjusted to reflect changes to Book Value in accordance with Section
2.4
hereof, for the Loan Pool containing such Loan, multiplied by the Repurchase
Percentage, plus (ii) any Advances on such Loan included in the Purchase Price,
plus (iii) any interest on such Loan that is not a lease included in the
Purchase Price, minus (iv) the total of amounts received after the Calculation
Date by Buyer for such Loan, regardless of how applied, plus (v) Advances made
by Buyer, plus (vi) total Disbursements of Principal regarding such Loan which
is not a lease made by Seller that are not included in the Book Value, minus,
as
regards the Loans, (vii) any amount credited to Buyer by Seller for security
deposits and escrow deposits as provided in Section 5.10, accounts payable
and
brokerage commissions as provided in Section 5.23 and Taxes as provided in
Section 5.24 which is attributable to the repurchased Loan. The
amount to be subtracted for security deposits, escrow deposits, accounts
payable, brokerage commissions and Taxes as provided in this paragraph will
not
be subtracted in the event Buyer has actually paid such amounts on the
repurchased Loan and Buyer provides evidence satisfactory to Seller that such
amounts have been paid.
"Schedule
of Loans" means the
list of all Loans that are the subject of this transaction appended to this
Agreement as Attachment "A" and in addition, if the Buyer purchases Loan Pool
NBF-1-07-010, the list of Loans appended to this Agreement as Attachment
"A-1."
“Servicing
Agreements”
means the two Servicing Agreements described on Attachment “H” to this
Agreement.
"Settlement
Date"
means a date determined by Seller upon which final adjustments will be made
to
the Purchase Price pursuant to Section 2.4 hereof. Any Settlement Date
determined by Seller shall be a Business Day not later than one hundred eighty
(180) calendar days after the Loan Sale Closing Date.
"Significant
Environmental
Contamination" means the presence at, in or under a Mortgaged Property,
at a level or in an amount that poses a threat to human health or the
environment sufficient to prompt a regulator to require remediation under any
federal or state law, of any substance defined as a "hazardous substance" under
Section 101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601(14), and including lead-based paint and
petroleum, including crude oil or any fraction thereof that is liquid at
standard conditions of temperature and pressure.
8
“Taxes”
means
sales
taxes and personal property taxes assessed against Seller regarding the Loans,
which sales taxes and personal property taxes remain unpaid by the Seller as
of
the Calculation Date, or become due and payable after the Calculation
Date.
"Transfer
Documents"
means the endorsements and allonges to Notes, Assignment and Lost Instrument
Affidavits (if applicable), assignments, deeds and other documents of
assignment, conveyance or transfer required under the laws of any jurisdiction
within the United States to evidence the transfer to Buyer of the Loans, the
Collateral Documents and Seller’s rights with respect to the Loans and the
Collateral. Transfer Documents do not include this Agreement, the Xxxx of Sale,
and the Assignment and Assumption of Interests and Obligations.
"Uniform
Commercial
Code" means the uniform law governing commercial transactions as
adopted by the State of New York.
9
Article
II
Purchase
and Sale of Loans
NBBF
will
not enter into any new loan or lease beginning November 1,
2007. Beginning November 1, 2007, NBBF will refer to the Buyer all
inquiries it receives from potential borrowers or lessees regarding new loans
or
leases. It will be the Buyer’s decision as to whether to enter into a
loan or lease with the inquirer and whether to fund such loan or
lease.
NBBF
will
assign the Inchoate Agreements to Buyer by an assignment in the form of
Attachment "J" to this Agreement. The Buyer has no right to call upon
Seller to repurchase the Inchoate Agreements under the provisions of Article
VII
of the Agreement.
10
(a)
On or before the Settlement Date,
Seller shall provide Buyer with a statement(s) setting forth adjustments to
the
Purchase Price that Buyer or Seller discovers reflecting (1) any changes in
the
Book Value (i) because of miscalculations, misapplied payments, unapplied
payments, unrecorded Disbursements of Principal disbursed on or before the
Calculation Date, or other accounting errors; or (ii) resulting from a final
court decree, unappealable regulatory enforcement order or other similar action
of a legal or regulatory nature effective on or before the Calculation Date,
or
(iii) resulting from a foreclosure sale which occurred on or before the
Calculation Date for which the Redemption Period, if any, expired on or before
the Calculation Date; and (2) any unreimbursed Advances or Disbursements of
Principal disbursed after the Calculation Date that were not previously included
in the Purchase Price. No adjustment to Purchase Price will be made for (a)
any
changes resulting from any calculation or adjustment of interest on any Loan
as
provided in Section 6.4 hereof, or (b) any payment of Taxes as provided in
Section 5.24. Any monies due Buyer or Seller as a result of any adjustments
made
pursuant to Section 2.4(a)(1) hereof will be calculated by multiplying the
resulting net change in Book Value by the Bid Percentage. Any monies due Seller
as a result of any adjustments made pursuant to Section 2.4(a)(2) will be equal
to 100% of the aggregate amount of payments not previously included in the
Purchase Price. The total aggregate amount owed to Seller shall be subtracted
from the total aggregate amount owed to Buyer. If the resulting amount is a
positive number, Seller shall pay such amount to Buyer, and if the resulting
amount is a negative number, Buyer shall pay such amount to Seller as if such
number were a positive number. Any monies due Buyer or Seller will be paid
no
later than ten (10) Business Days after the Settlement Date. Buyer shall adjust
its servicing records to reflect any changes to the unpaid principal balance
of
any Loan made pursuant to this Section 2.4(a).
(b)
With respect to any Loan, Seller
reserves the right to permit or require offsets against deposit accounts of
the
Failed Bank. If allowed by Seller, such offsets will be retroactive to the
date
such Failed Bank closed. At such time as an offset is effected, Seller will
give
notice of such to Buyer and pay Buyer the amount of the offset on a
dollar-for-dollar basis and Buyer shall credit such amount to the Loan according
to the terms and conditions of the applicable Note(s) as of Bank Closing
Date.
expired
on or before the Calculation Date; nor shall Buyer acquire any interest in
or to
any performance or completion bond filed with any governmental entity for the
purpose of ensuring that improvements constructed or to be constructed on such
property are completed in accordance with any governmental regulation(s) or
building requirement(s) applicable to the proposed or completed
improvement.
11
2.8.
Other
Taxes. Notwithstanding that Other Taxes may, under applicable law, be
assessed against and payable by Seller, Buyer hereby agrees to accept
responsibility for and to pay, on its own behalf or on behalf of Seller, as
the
case may be, any and all Other Taxes, and Seller shall have no obligation to
reimburse Buyer therefor. Payment of Other Taxes shall not affect the Purchase
Price. Within thirty days after the Loan Sale Closing Date, Buyer
shall deliver to Seller a Certificate re Other Taxes in accordance with Section
3.1 hereof. In the event that the Certificate re Other Taxes shall prove to
have
been incorrect or for any other reason Buyer becomes aware of
Other Taxes due, Buyer shall promptly notify Seller and shall pay such Other
Taxes in accordance with the provisions of this Section 2.8. In the event that
Other Taxes shall be payable, Buyer shall make payment thereof to the relevant
taxing authorities when due, identifying to such authorities in appropriate
manner and in accordance with applicable law the nature of the payment and
identifying the party on whose behalf the payment is being made. In the event
that, under applicable law, Buyer shall be unable to make payment of Other
Taxes
on behalf of Seller, then Buyer shall promptly notify Seller thereof and Seller
may, at its sole option, grant to Buyer a limited power of attorney, in such
form as Seller shall determine, solely for the purpose of making payment of
such
Other Taxes and filing information returns with respect thereto as agent for
Seller. Buyer shall notify Seller, in accordance with the provisions of Article
VIII of this Agreement, promptly after payment of any Other Taxes that such
payment has been made.
12
Article
III
3.1.
Delivery
of
Documents. Buyer and Seller agree to execute and deliver to one another
the following files and documents:
(a) At
Closing, Buyer shall deliver to Seller:
1. Two
originals of the Assignment and Assumption of Interests and Obligations, in
the
form of Attachment "D" to this Agreement, executed by
Buyer.
2. A
corporate resolution certified by Buyer's corporate secretary or,
if
Buyer
is not a corporation, other evidence satisfactory to Seller as to Buyer's
authority: (i) to purchase the Loans and assume the Obligations thereunder,
and
(ii) to execute and deliver this Agreement and all related instruments required
to consummate the transactions contemplated hereby and to carry out all of
its
obligations hereunder (including a certificate of incumbency of any person
who
executes any document on behalf of Buyer).
3. Two
originals of this Agreement executed by Buyer.
|
4.
|
Two
originals of the Assignment of Leases, in the form of Attachment
“I” to
this Agreement, executed by Buyer.
|
|
5.
|
Two
originals of an Assignment of Servicing Agreements as described in
Section
5.25 of this Agreement, executed by
Buyer.
|
6. Other
documents as Seller may reasonably require as evidence of
Buyer's
good standing, existence or authority.
(b) At
Closing, Seller shall deliver to Buyer:
1. A
Xxxx of Sale transferring all of Seller's right, title and interest
in
|
and
to the Loans to Buyer, in the form of Attachment "C" to this
Agreement, executed by Seller.
|
2. Two
originals of the Assignment and Assumption of Interests and Obligations, in
the
form of Attachment "D" to this Agreement, executed by
Seller.
3. Two
originals of this Agreement executed by Seller.
|
4.
|
Two
originals of the Assignment of Leases, in the form of Attachment
“I” to
this Agreement, executed by Seller.
|
13
|
5.
|
Two
originals of an Assignment of Servicing Agreements as described in
Section
5.25 of this Agreement, executed by
Seller.
|
6. Such
Transfer Documents executed by Seller as Seller elects to deliver at
Closing.
(c) Within
thirty days after the Loan Sale Closing Date, Buyer shall deliver the
Certificate re Other Taxes to Seller, if applicable.
(d) Within
a reasonable time after the Loan Sale Closing Date, Seller shall deliver to
Buyer the Note, the Loan File(s) and Collateral Document(s) pertaining to the
Loan(s) sold.
(e) After
Closing, Seller, in Seller’s sole discretion, may elect to grant a Limited Power
of Attorney to selected Buyer employees. If Seller elects to grant
such a Limited Power of Attorney, Seller will provide it to Buyer within a
reasonable time after the Loan Sale Closing Date. If Buyer is granted
such a Limited Power of Attorney, Buyer, at Buyer’s expense, will prepare and
execute on behalf of Seller, within a reasonable time after the Loan Sale
Closing Date, all Transfer Documents not delivered by Seller to Buyer at
Closing. All Transfer Documents prepared by Buyer shall be in
appropriate form suitable for filing or recording (if applicable) in the
relevant jurisdiction and otherwise subject to the limitations set forth herein,
and Buyer shall be solely responsible for the preparation, contents and form
of
such documents. Buyer hereby releases Seller from any loss or damage
incurred by Buyer due to the contents and form of any documents prepared by
Buyer and shall indemnify and hold Seller harmless for any action or cause
of
action by any person, including Buyer, arising out of the contents or form
of
the Transfer Documents, including without limitation, any claim relating to
the
adequacy or inadequacy of any of such documents or instruments for the purposes
thereof.
The
form
which Buyer shall use for endorsing promissory notes or preparing allonges
to
promissory notes is as follows:
Pay
to
the order of
Without
Recourse
FEDERAL
DEPOSIT INSURANCE CORPORATION AS RECEIVER OF NETBANK
By:
Name:
Title: Attorney-in-Fact
14
(f) In
the event Seller elects not to provide Buyer with a Limited Power of Attorney
in
accordance with Section 3.1(e), then all Transfer Documents not delivered by
Seller to Buyer at Closing shall be prepared and executed by one of the
following methods, at Seller’s option:
1. Seller,
at Seller’s expense, will prepare and execute all endorsements and allonges to
Notes or Assignment and Lost Instrument Affidavits (if applicable) not delivered
by Seller to Buyer at Closing and provide them to Buyer within a reasonable
time
after the Loan Sale Closing Date. Buyer, at Buyer’s expense, will
prepare all other Transfer Documents not delivered by Seller to Buyer at Closing
and shall deliver such documents to Seller for execution within a reasonable
time after the Loan Sale Closing Date. All Transfer Documents
prepared by Buyer shall be subject to the terms and conditions for Transfer
Documents specified in Section 3.1(e) above. If any Transfer Document
delivered by Buyer to Seller for execution is unacceptable to Seller for any
reason whatsoever, Seller may return such document to Buyer along with an
explanation as to why the document is unacceptable to Seller. When
requesting execution of any such document, Buyer shall furnish Seller with
the
Loan Pool and the Loan numbers set forth on the Schedule of Loans, and a copy
of
the Note(s), a copy of the Collateral Document(s) or other document(s) to be
transferred, and copies of any previous assignments of the applicable Collateral
Document or other document; or
2. Seller,
at Seller’s expense, will prepare and execute all Transfer Documents not
delivered by Seller to Buyer at Closing and provide them to Buyer within a
reasonable time after the Loan Sale Closing Date. Seller shall
furnish all such documents to Buyer in appropriate form suitable for filing
or
recording (if applicable) in the relevant jurisdiction and otherwise subject
to
the limitations set forth herein.
(g) As
to Foreign Loans, Buyer, at its own expense, must retain counsel who are
licensed in the Foreign Jurisdiction(s) involved with the Foreign
Loans. Such foreign counsel must draft the documents necessary to
assign the Foreign Loans to Buyer. Documents presented to Seller to
assign Foreign Loans to Buyer must be accompanied by a letter on the foreign
counsel's letterhead, signed by the foreign counsel preparing those documents,
certifying that those documents conform to all the laws of the Foreign
Jurisdiction. Each such document and instrument shall be delivered to
Seller in the English language, provided, however, that any document required
for its purposes to be executed by Seller in a language other than the English
language shall be delivered to Seller in such language, accompanied by a
translation thereof in the
English language, certified as to its accuracy by an executive officer or
general counsel of Buyer and, if such executive officer or general counsel
shall
not be fluently bilingual, by the translator thereof.
15
(h) Nothing
contained herein or elsewhere in this Agreement shall require Seller to make
any
agreement, representation or warranty or provide any indemnity in any such
document or instrument or otherwise, nor is Seller obligated to obtain any
consents or approval to the sale or transfer of (i) the Loans or the related
servicing rights, if any, (ii) the Servicing Agreements described in Attachment
“H,” or (iii) the assumption by the Buyer of the Obligations or any of the other
obligations described in this Agreement.
(i) Seller
agrees to execute any additional documents required by applicable law or
necessary to effectively transfer and assign any and all Loans to
Buyer. Seller shall have no obligation to provide, review or execute
any such additional documents unless the same shall have been requested of
Seller within 365 calendar days of the Loan Sale Closing Date.
3.2. Recordation
of Documents. Buyer shall be responsible for, and
agrees to promptly deliver, at its sole cost and expense, all appropriate
documents and instruments with respect to each Loan for recordation or filing
in
the appropriate land, chattel, Uniform Commercial Code, and other records of
the
appropriate county, state and/or other jurisdiction(s) or Foreign Jurisdiction
to effect the transfer of the Loans and the Collateral Documents and all rights
in Collateral, and to render legal, valid and enforceable the obligations of
the
Borrower(s) to the Buyer and the assumption by the Buyer of any Obligations
related to a Loan arising under and in accordance with the relevant Note and
Collateral Documents. Seller shall, if such is affirmatively required
under the applicable laws of a relevant Foreign Jurisdiction, take such actions
as are necessary in such Foreign Jurisdiction to effect the purposes of this
Article III. In accordance with Section 2.8 hereof, Buyer shall
be responsible for and shall pay any and all Other Taxes, fees, costs and
expenses incurred in connection therewith, including without limitation
notarization fees and stamp, transfer and similar Other Taxes or
fees.
3.3. Transfer
of Servicing. The Loans are hereby sold and
conveyed to Buyer on a servicing-released basis. In the event a
successful bidder acquires Loan Pool NBF-1-07-010, the servicing will be
transferred to the Buyer on the Loan Sale Closing Date.
In
the
event a successful bidder acquires Loan Pool NBF-1-07-020, Seller will provide
interim servicing of the Loans on Buyer’s behalf from the Loan Sale Closing
Date through the Deconversion Date. The interim servicing provided by
Seller will conform to industry standards. Seller’s performance
of this interim servicing shall cease on the Deconversion Date.
Seller
will appoint Buyer as its subservicer, and Buyer will serve as Seller’s
subservicer during the interim servicing period from Loan Sale Closing Date
through the Deconversion Date. On the Loan Sale Closing Date Seller
will make available to Buyer or will provide Buyer with the NBBF system(s)
used
to service Loans. Seller will pay Buyer to subservice the Loans only
for the thirty (30) calendar-day period beginning on the Loan Sale Closing
Date. Seller will not pay Buyer for subservicing beginning the
thirty-first (31st) day from
the Loan
Sale Closing Date (the Loan
Sale
Closing Date being the first day of the thirty-one days) through the
Deconversion Date. Seller will pay Buyer for subservicing for the
thirty (30)
16
calendar
period beginning on the Loan Sale Closing Date on the following
basis: Seller will reimburse Buyer for expenses incurred by Buyer in
connection with Buyer’s subservicing duties which the Seller reasonably
determines are actual, reasonable and necessary, including expenses of
photocopying, postage and express mail, data processing and employee
services (based upon the number of hours spent performing subservicing duties)
but not including overhead or other administrative expenses related to such
employee services. All of such subservicing expenses submitted to
Seller for reimbursement must be documented by evidence, satisfactory to Seller,
supporting the basis for such expenses. Promptly upon request by
Seller, Buyer shall supply Seller with any additional evidence that Seller
may
request.
From
and
after the Loan Sale Closing Date, all rights, obligations, liabilities and
responsibilities with respect to the servicing of the Loans shall pass to the
Buyer, and Seller shall be discharged from all liability therefor, including
any
liability arising from any interim servicing provided by Seller pursuant to
this
Section 3.3.
17
Article
IV
Buyer
hereby represents and warrants to
Seller as of the date of this Agreement and as of the Loan Sale Closing
Date:
4.1. Buyer's
Authorization. Buyer and the undersigned duly authorized representative
of Buyer, acting individually, represent that Buyer is authorized to enter
into
this Agreement and that all laws, rules, regulations, charter provisions and
bylaws to which Buyer may be subject have been duly complied with, and that
such
representative is authorized to act upon behalf of and bind Buyer to the terms
of this Agreement.
4.2. Compliance
with Law. Neither Buyer nor any of its subsidiaries is in violation of
any statute, regulation, order, decision, judgment or decree of, or any
restriction imposed by, the United States of America, any State, municipality
or
other political subdivision or any agency of any of the foregoing, or any court
or other tribunal having jurisdiction over Buyer or any of its subsidiaries
or
any assets of any such person, or any foreign government or agency thereof
having such jurisdiction, with respect to the conduct of the business of Buyer
or of its subsidiaries, or the ownership of the properties of Buyer or any
of
its subsidiaries, which, either individually or in the aggregate with all other
such violations, would materially and adversely affect the business, operations
or condition (financial or otherwise) of Buyer or the ability of Buyer to
perform, satisfy or observe any obligation or condition under this Agreement.
Neither the execution and delivery nor the performance by Buyer of this
Agreement will result in any violation by Buyer of, or be in conflict with,
any
provision of any applicable law or regulation, or any order, writ or decree
of
any court or governmental authority.
4.3. Execution
and Enforceability. This Agreement has been duly executed and delivered
by Buyer and when duly authorized, executed and delivered by Seller, this
Agreement will constitute a legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms.
4.4. Representations
Remain True. Buyer represents and warrants that all information and
documents provided to Seller or its agents by or on behalf of Buyer in
connection with this Agreement and the transactions contemplated hereby,
including, but not limited to, the Purchaser Eligibility Certification, the
Bid
Certification, and the Confidentiality Agreement, are true and correct in all
material respects and do not fail to state any fact necessary to make the
information contained therein not misleading.
18
Article
V
5.1. Servicing
of Loans.From and after the Loan Sale Closing Date if the Buyer
purchases Loan Pool NBF-1-07-010, or the Deconversion Date if the Buyer
purchases Loan Pool NBF-1-07-120, Buyer shall comply with all state and federal
laws and the laws of any Foreign Jurisdiction applicable with respect to the
ownership and/or servicing of the Loans, including, without limitation, the
Fair
Debt Collection Practices Act (15 U.S.C. § 1692 et seq., as amended)
and similar state requirements, rules and regulations, and shall abide by and
be
subject to all of the terms and conditions of the Collateral Documents and
other
instruments and documents governing or relating to the Loans and/or the
servicing rights and other rights thereunder.
5.2. Assumption
of Obligations. Buyer accepts and assumes and expressly agrees to
perform in accordance with the terms, all Obligations related to the Loans
and
Collateral Documents, including without limitation, all Obligations for
Disbursements of Principal, and Buyer hereby expressly agrees to indemnify,
defend and hold harmless the Failed Bank, Seller and Seller's agents and
employees from and against any claims, demands and causes of action arising
out
of claims of breach or default by Buyer of such Obligations.
5.3. Collection
Agency/Contingency Fee Agreements. Buyer takes the Loan(s) subject to
any agreements with collection agencies currently in force or contingency fee
agreements with attorneys and agrees to fulfill all Obligations of Seller
thereunder. Buyer hereby indemnifies and agrees to hold Seller harmless from
and
against any and all claims, demands, losses, damages, penalties, forfeitures
or
judgments made or rendered against Seller or any legal fees or other costs,
fees
or expenses incurred by Seller arising out of or based upon such agreements
with
collection agencies or contingency fee agreements with attorneys. Buyer agrees
to notify Seller within ten (10) Business Days of notice or knowledge of any
such claim or demand.
5.4. Insured
or Guaranteed Loans. If any Loans being transferred pursuant to this
Agreement are insured or guaranteed by any department or agency of any
governmental unit, federal, state or local and such insurance or guaranty is
not
being specifically terminated by Seller, Buyer represents that Buyer has been
approved by such agency and is an approved lender or mortgagee, as appropriate,
if such approval is required or, if Buyer has not been approved, Buyer
recognizes that any such insurance or guarantees may be terminated. Buyer
further assumes full responsibility for determining whether or not such
insurance or guarantees are in full force and effect on the date of this
Agreement and with respect to those Loans whose insurance or guaranty is in
full
force and effect on the date of this Agreement, Buyer assumes full
responsibility for doing all things necessary to insure such insurance or
guarantees remain in full force and effect. Buyer agrees to assume all of
Seller's Obligations under the contract(s) of insurance or guaranty, agrees
to
indemnify and hold Seller harmless from and against any claims of breach thereof
after the Closing and agrees to cooperate with Seller where necessary to
complete forms required by the insuring or guaranteeing department or agency
to
effect or complete the transfer to Buyer.
19
5.5. Buyer's
Due Diligence. Buyer represents that it has made an independent
evaluation of the Loans and Loan Files and/or any electronic data made available
to it pertaining to the Loans being purchased hereunder. Buyer also represents
that it has conducted such other investigations as it deems appropriate and
as
are consistent with the terms of the Confidentiality Agreement executed or
assented to by Buyer in connection with this transaction, including, without
limitation, searches of Uniform Commercial Code, title, court, bankruptcy and
other public records. Buyer agrees and represents that it is entering into
this
Agreement solely on the basis of its own investigations and its judgment as
to
the nature, validity, enforceability, collectibility and value of the Loans
and
all other facts material to their purchase, including, but not limited to the
legal matters and risks relating to the collection and enforcement, and the
performance of Obligations in any Foreign Jurisdiction. Buyer further
acknowledges that no employee or representative of Seller has been authorized
to
make any statements or representations other than those specifically contained
in this Agreement.
5.6 Reporting
to or for the Applicable Taxing Authorities. The Buyer
of Loan Pool NBF-1-07-010 or NBF-1-07-020 will be responsible for submitting
all
Internal Revenue Service information returns related to the Loans sold hereunder
for all of 2007. The Buyer of Loan Pool NBF-1-07-010 will prepare and
submit those returns at its own expense. The Buyer of Loan Pool
NBF-1-07-020 will be reimbursed by the Seller for the Buyer’s reasonable costs
attributable to preparing and submitting the returns for 2007 on the following
basis: the Seller will reimburse Buyer for expenses which the
Seller reasonably determines are actual, reasonable and necessary, including
expenses of photocopying, postage and express mail, data processing and employee
services (based upon the number of hours spent performing such duties) but
not
including overhead or other administrative expenses related to such employee
services. All of such expenses submitted to Seller for reimbursement
must be documented by evidence, satisfactory to Seller, supporting the basis
for
such expenses. Promptly upon request by Seller, Buyer shall supply
Seller with any additional evidence that Seller may request.
Buyer
shall be responsible for submitting all information returns required under
applicable laws of any Foreign Jurisdiction, to the extent such are required
to
be filed by Buyer or Seller under such laws, relating to the Loans, for the
calendar or tax year in which the Closing occurs and thereafter.
5.7. Loans
in Litigation. With respect to any Loan sold pursuant to this
Agreement, which is the subject of any type of pending litigation, Buyer shall
notify Seller's Regional Counsel, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, within
fifteen (15) Business Days of the Loan Sale Closing Date of the name
of the attorney selected by Buyer to represent Buyer's interests in the
litigation. Buyer shall, within fifteen (15) Business Days of the Loan Sale
Closing Date, notify the clerk of the court or other appropriate official and
all counsel of record that ownership of the Loan was transferred from Seller
to
Buyer. Buyer shall have its attorney file appropriate pleadings and other
documents and instruments with the court or other appropriate body within twenty
(20) Business Days of the Loan Sale Closing Date, substituting Buyer's attorney
for Seller's attorney and also removing Seller as a party to the litigation
and
substituting Buyer as the real party-in-interest. Except as provided in the
next
succeeding sentence, should Buyer fail to
comply
with the provisions of this section within twenty (20) Business Days after
the
Loan Sale Closing Date, Seller may, at its option, dismiss with or without
prejudice or withdraw from, any such pending litigation.
20
In
the
event that Buyer shall be unable, as a matter of applicable law, to cause Seller
to be replaced by Buyer as party-in-interest in any such litigation, Buyer
shall
provide to Seller's Regional Counsel at the address specified above within
twenty (20) Business Days of the Loan Sale Closing Date a legal opinion of
Buyer's legal counsel, qualified in the relevant jurisdiction, to such effect
and stating the reasons for such failure. In such event, (i) Buyer
shall cause its attorney to conduct such litigation at Buyer's sole cost and
expense; (ii) Buyer shall cause the removal of Seller and substitution of Buyer
as party-in-interest in such litigation at the earliest time possible under
applicable law; (iii) Buyer shall use its best efforts to cause such litigation
to be resolved by judgment or settlement in as reasonably efficient a manner
as
practical; (iv) Seller shall cooperate with Buyer and Buyer's attorney as
reasonably required in Seller's sole judgment to bring such litigation or any
settlement relating thereto to a reasonable and prompt conclusion; (v) no
settlement shall be agreed upon by Buyer or its agents or counsel without the
express prior written consent of Seller, unless such settlement includes an
irrevocable and complete waiver and release of any and all potential claims
against Seller in relation to such litigation or the subject Loans or
Obligations by any person, including without limitation Buyer and any Borrower,
and any and all losses, liabilities, claims, causes of action, damages, demands,
taxes, fees, costs and expenses relating thereto are expressly agreed, duly,
validly and enforceably, to be paid by Buyer without recourse of any kind to
Seller; and (vi) Buyer shall pay all costs and expenses of Seller and Seller's
counsel, if any, engaged in connection with such litigation as provided for
in
the next succeeding sentence.
Buyer
agrees to reimburse Seller, upon demand, for Seller's legal expenses in such
litigation. Buyer shall pay all of the costs and expenses incurred by it in
connection with the actions provided for in this Section 5.7, including, without
limitation, all legal fees and expenses and court costs, and agrees to pay
or
reimburse Seller, upon demand, for Seller's legal expenses in connection with
such litigation incurred on or after the Loan Sale Closing Date, including
the
dismissal thereof or withdrawal therefrom.
5.8. Loans
in Bankruptcy. In accordance with Bankruptcy Rule 3001(e), Buyer agrees
to take all actions necessary to file within thirty (30) Business Days of the
Loan Sale Closing Date, (i) proofs of claims in pending bankruptcy cases
involving any Loans purchased for which Seller has not already filed a proof
of
claim, and (ii) all documents required by Rule 3001(e)(2) of the Federal Rules
of Bankruptcy Procedure and to take all such similar actions as may be required
in any relevant jurisdiction in any pending bankruptcy or insolvency case or
proceeding in such jurisdiction involving any Loans purchased in order to
evidence and assert Buyer's rights. Buyer shall prepare and provide to Seller
within thirty (30) Business Days of the Loan Sale Closing
Date, an Affidavit and Assignment of Claim or any similar forms as may be
required in any relevant Foreign Jurisdiction and shall be acceptable to Seller,
for each Loan purchased pursuant to this Agreement where a Borrower under such
Loan is in bankruptcy at Closing. Buyer releases Seller from any claim, demand,
suit or cause of action Buyer may have as a result of any action or inaction
on
the part of the Failed Bank or the Seller with respect to
such
Loan
and Buyer further agrees to reimburse Seller for any cost or expense incurred
by
Seller as a result of Buyer's failure to file an Affidavit and Assignment of
Claim or similar forms as required herein.
21
5.9. Loan
Related Insurance. As of the Loan Sale Closing Date, Buyer is
responsible for having itself substituted as loss payee on all Loan related
insurance in which the Failed Bank or Seller is currently listed as a loss
payee. Any loss after the Loan Sale Closing Date to a Borrower, a participant
in
a Participated Loan, or to Buyer or to the value or collectibility of any Loan
due to Seller's cancellation of any insurance is the sole responsibility of
Buyer.
5.10. Loans
with Escrow Accounts and Security Deposits. Buyer agrees to assume,
undertake and discharge any and all Obligations of the holder of the Loans
with
respect to any security deposit, escrow, maintenance of escrow and payments
from
escrow of monies paid by or on account of the Borrower, including monies held
in
account 215050 of NBBF's books and records. If the successful bidder
acquires Loan Pool NBF-1-07-010, Seller shall transfer to Buyer on the Loan
Sale
Closing Date that sum of monies held by Seller which represents undisbursed
security deposits and escrow payments as of such date. If the
successful bidder acquires Loan Pool NBF-1-07-020, Seller shall transfer to
Buyer on the Deconversion Date that sum of monies held by Seller which
represents undisbursed security deposits and escrow payments as of that
date. Buyer shall be given a credit against the Purchase Price for
the assumption of the liability for the security deposits and escrow deposits,
as such liability appears on the books and records of NBBF as of the Calculation
Date.
5.11. Loans
in
which Seller was the Lead Lender in a Participated Loan. Buyer hereby
agrees to assume the role of lead lender for any Loan in which a portion of
the
Loan was participated to one or more other entities and in which Seller was
the
lead lender as of the Loan Sale Closing Date. Buyer hereby
agrees to accept any such Participated Loan subject to all participants' right,
title and interest in such Participated Loan.
5.12. Contracts
for Deed. Buyer agrees to comply with all Obligations set forth in any
Contract for Deed contained in any Loan Pool subject to this Agreement. Pursuant
to the provisions of Section 3.1 hereof, Seller may require Buyer to prepare
and
furnish Special Warranty Deed(s) for Seller's approval and execution, conveying
the real property subject to any such contract to Buyer. Title curative work,
if
required, shall be at Buyer's sole cost and expense.
5.13. Leases. Buyer
agrees to comply with all Obligations set forth in any lease related to any
Loan
Pool subject to this Agreement. Pursuant to the provisions of Section
3.1 hereof, Seller may require Buyer to prepare and furnish applicable Transfer
Documents for Seller’s approval and execution.
5.14. Files
and Records. Buyer agrees to abide by all applicable state, federal
and Foreign Jurisdiction laws, rules and regulations
regarding the handling and maintenance of all documents and records relating
to
the Loans purchased hereunder including, but not limited to, the length of
time
such documents and records are to be retained. Buyer further agrees
to:
22
(a) Allow
Seller the continuing right to use, inspect and make extracts from or copies
of
any such documents or records upon Seller's reasonable notice to
Buyer.
(b) Allow
Seller the possession, custody and use of original documents for any lawful
purpose and upon reasonable terms and conditions.
(c) Give
reasonable notice to Seller of Buyer's intention to destroy or dispose of any
documents or files and to allow Seller, at its own expense, to recover the
same
from Buyer.
5.15. Reimbursement
for Use of Seller's Employees. In the event of litigation with respect
to the Loans purchased by Buyer in which Seller or its employees are requested
or required by subpoena, court order or otherwise, to perform any acts
including, but not limited to, testifying in litigation, preparing responses
to
subpoenas or other legal process or pleadings, and/or performing any review
of
public or private records such as tracing funds, whether said litigation is
commenced by Buyer or any other party, Seller shall be reimbursed by Buyer
for
the time expended by each of Seller's employees involved in the performance
of
said acts at the rate of the greater of $75.00 per hour per employee or the
then
prevailing hourly rate per employee charged by the Seller or the FDIC to perform
such services, plus all associated travel, lodging and per diem costs. Seller
shall, in its sole and absolute discretion, determine and assign the personnel
necessary to perform said acts. Buyer also agrees to reimburse Seller for copies
made in the course of performing said acts at the rate of 25 cents ($.25) per
copy. Nothing in this section shall require Seller to provide Buyer with any
information or service in this regard.
5.16. Notice
to Borrowers. Buyer or, at Seller's option, Seller shall promptly after
the Loan Sale Closing Date, but in no event later than thirty (30) calendar
days
after the Loan Sale Closing Date, at its own cost and
expense, give notice of this transfer to all Borrowers or Loan servicers, in
the
case of Borrowers located in the United States, by first class U.S. mail at
their current or last known address of record or, in the case of Borrowers
located in a Foreign Jurisdiction, in such manner as may be required under
the
laws of such jurisdiction in order to effectively give notice to such Borrowers
of the transfer of the Loans. In the event there is no known address for a
Borrower, no personal notice to that Borrower shall be necessary. Upon
subsequently locating such Borrower, Buyer shall send such notice to such
Borrower. Buyer shall be liable to Seller for any and all costs and expenses
incurred by Seller as a result of Buyer's failure to comply with the provisions
of this section. Such costs and expenses shall include, but not be limited
to,
salaries of Seller's personnel and other administrative expenses, the time
expended by each of Seller's employees involved in the performance of said
acts
at the rate of the greater of $75.00 per hour per employee or the then
prevailing hourly rate per employee charged by the Seller or the FDIC to perform
such services, plus all associated travel, lodging and per diem costs. Seller
shall, in its sole and absolute discretion, determine and assign the personnel
necessary to perform said acts. Buyer also agrees to reimburse Seller for copies
made in the course of performing said acts at the rate of 25 cents ($.25) per
copy. Nothing in this section shall require Seller to provide Buyer with any
information or service in this regard.
23
5.17. Notice
of Claim. Buyer shall immediately notify Seller of any claim,
threatened claim or litigation against Seller or the Failed Bank arising out
of
any Loan contained in a Loan Pool purchased by Buyer that may come to its
attention.
5.18. Use
of the FDIC's Name and Reservation of Statutory Powers. Buyer agrees
that it will not use or permit the use by its agents, successors or assigns
of
any name or combination of letters that is similar to the FDIC or the Federal
Deposit Insurance Corporation. Buyer will not represent or imply that it is
affiliated with, authorized by or in any way related to the FDIC. Seller
specifically permits Buyer to assert the statute of limitations established
under 12 U.S.C. § l82l(d)(14) pursuant to the terms of the Assignment and
Assumption of Interests and Obligations. However, Buyer acknowledges and agrees
that the assignment of any Loan or Collateral Document pursuant to the terms
of
this Agreement shall not constitute the assignment of any other rights, powers
or privileges granted to Seller pursuant to the provisions the Federal Deposit
Insurance Act, including, without limitation, those granted pursuant to 12
U.S.C. § 182l(d), 12 U.S.C. § l823(e) and 12 U.S.C. § 1825, all such rights and
powers being expressly reserved by Seller; nor, shall Buyer assert or attempt
to
assert any such right, power or privilege in any pending or future litigation
involving any Loan purchased hereunder. Buyer and Seller agree and stipulate
that breach of the provisions of this section will result in actual and
substantial damages to Seller in an amount that cannot be determined with
precision. It is therefore agreed that in the event of such breach, Buyer shall
pay the sum of $25,000.00 to Seller for each such breach as liquidated damages,
together with such fees and expenses as Seller may incur in preventing further
or continuing breach of said provision and recovering liquidated damages.
Notwithstanding the provisions of this section, the FDIC may also pursue any
equitable remedy it may have for Buyer's breach of this covenant.
5.19.
Prior Servicer Information. Buyer acknowledges and agrees that
Seller might not have access to information from prior servicers of a Loan
and
that Seller has not requested any information not in the possession of Seller
or
its servicing contractor from any prior servicer of a Loan. Buyer acknowledges
and agrees that Seller will not be required under the terms of this Agreement
to
request any information from any prior servicer.
5.20. Release
of Seller. (a) Except as otherwise specifically provided in
Article VII of this Agreement, Buyer hereby releases and forever discharges
Seller, the Failed Bank and the FDIC, all of their officers, directors,
employees, agents, attorneys, contractors and representatives, and their
successors, assigns and affiliates, from any and all claims (including any
counterclaim or defensive claim), demands, causes of action, judgments or legal
proceedings and remedies of whatever kind or nature that Buyer now has or might
have in the future, whether now known or unknown, which are related in any
manner whatsoever to the Loans and this Agreement.
(b) Buyer
agrees that it will not renew, extend, renegotiate, compromise, settle or
release any Note or Loan or any right of Buyer founded upon or growing out
of
this Agreement, except upon payment in full thereof, unless all Borrowers on
said Note or Loan shall first release and discharge the Failed Bank(s) and
Seller and its agents and assigns (the "Released Parties") from all claims,
demands and causes of action which any such Borrower may have against
any such Released Party arising from or growing out of any act or omission
occurring prior to the date of such release. If Buyer fails
to obtain such release, Buyer agrees to protect,
save and hold Seller harmless from any expense or damage Seller suffers that
might have been prevented had Buyer obtained the release.
24
5.21. Indemnification.
Buyer agrees to pay, or reimburse to Seller, and
to protect, indemnify, save and hold harmless Seller, Seller's
agents and financial services advisor engaged in connection with the Loan Sale
from and against any and all losses, liabilities, claims, causes
of action, damages, demands, taxes, fees, costs and expenses
of whatever kind, arising out of, incurred in connection
with or otherwise relating to Buyer's actions or inactions in
performing, or failure to perform, the obligations
of Buyer set forth in this Agreement. Buyer further agrees
to pay when due or promptly reimburse Seller for any fees, taxes,
costs and expenses incurred by Seller in connection with the performance or
nonperformance by Buyer of all of the obligations
of Buyer specified herein. Buyer further agrees
to indemnify and hold Seller harmless against any and all claims, losses,
liabilities, causes of action, damages, demands, taxes, fees, costs and expenses
whatsoever arising from or related to the Inchoate Agreements, whether such
claims are now known, arise after the date of the Agreement, or are discovered
after the date of the Agreement.
5.22. Borrower
as Buyer. In the event that Buyer is the Borrower or a Related Party
with respect to any Loan in the Loan Pool, then Buyer, on its own behalf and
on
behalf of any Related Party, agrees that it shall, and hereby does, release
and
discharge and agrees to indemnify, defend and hold harmless the Failed Bank(s),
Seller and Seller's agents and employees from and against all claims, demands
and causes of action arising out of any act or omission related to said Loan.
Buyer acknowledges and agrees that it shall have no repurchase option on any
Loan for which Buyer or a Related Party is the Borrower pursuant to Article
VII
of this Agreement. At Buyer's request, and upon preparation of appropriate
documentation by Buyer in conformance with Section 3.1, Seller will release
and
discharge a Loan for which Buyer is the Borrower in lieu of assigning the same
to Buyer. In any event, Seller will issue a 1099 to report any discharge of
indebtedness in connection with the sale or release of the Loan to the Borrower
or a Related Party in accordance with IRS regulations and FDIC
policy. Notwithstanding the foregoing, any failure by the FDIC to
issue a 1099 does not relieve the Buyer of its responsibility to report the
discharge of indebtedness in accordance with applicable federal tax
law.
25
26
Article
VI
Loans
Sold “As Is” and Without Recourse
6.3. No
Warranties or Representations as to Amounts of Unfunded Principal. Seller
further makes no warranties or representation of any kind or nature as to the
amount of any additional or future Disbursements of Principal Buyer is obligated
to make.
6.4. Disclaimer
Regarding Calculation or Adjustment of Interest on any Loan.
Seller makes no warranties or representation of
any kind as to the
accuracy of any calculation or adjustment of interest on any Loan, including,
without limitation, any adjustable rate mortgage Loan, whether such calculation
or adjustment is made by the Failed Bank, Seller, any agent or contractor of
Seller, or any predecessor-in-interest of Seller or any other
party.
6.5. No
Warranties or Representations With Regard to Due Diligence
Data. Seller makes no warranties or representation of
any kind as to the completeness or accuracy of any information provided by
Seller with respect to any Loan. Buyer's exclusive remedies with respect to
any
inaccurate or incomplete information provided by Seller are an adjustment to
the
Purchase Price in accordance with Section 2.4 hereof or an option to repurchase
under Article VII, and such exclusive remedies are available only if all other
conditions therefor expressed in this Agreement have been met.
6.6. Buyer’s
Waiver of Cause of Action. Buyer hereby waives any
right or cause of action it might now or in the future have against the Failed
Bank(s) or Seller as a result of its purchase of the Loan Pool(s) subject to
this Agreement; provided, however, that this waiver does not include any action
taken as a result of Seller's failure to perform under the terms of this
Agreement.
27
6.7. Intervening
or Missing Assignments. Buyer acknowledges and agrees
that Seller shall have no obligation to secure or obtain any missing intervening
assignment or any assignment to Seller that is not contained in the Loan File
or
among the Collateral Documents. Buyer shall have the sole responsibility and
expense of securing any intervening assignment or any assignment to Seller
that
may be missing from the Collateral Documents from the appropriate
source.
6.8 No
Warranties or Representations as to
Documents. Seller makes no warranties or
representations of any kind or nature as to the effectiveness or enforceability
in any Foreign Jurisdiction of this Agreement, the Xxxx of Sale, the Assignment
and Assumption of Interests and Obligations or any other document or instrument
prepared in connection herewith, whether or not prepared and executed in the
forms provided herewith, all of such forms being provided for reference
only.
28
Article
VII
7.1. Repurchases
at Buyer's Option. Buyer may, at its option, and upon
satisfaction of the procedures and other requirements set forth below, require
Seller to repurchase a Loan other than an Inchoate Agreement, if, and only
if,
prior to the Loan Sale Closing Date one of the following events set forth below
has occurred. IN NO EVENT SHALL THE OCCURRENCE OF ANY SUCH EVENT BE EVIDENCE
OF
BAD FAITH, MISCONDUCT OR FRAUD EVEN IN THE EVENT THAT IT IS SHOWN THAT SELLER,
IN ANY CAPACITY, ANY AGENT OF SELLER, ANY FAILED BANK OR ANY OF THEIR RESPECTIVE
DIRECTORS, EMPLOYEES, OFFICERS OR AGENTS KNEW OR SHOULD HAVE KNOWN OF THE
EXISTENCE OF ANY FACTS RELATING TO THE OCCURRENCE OF SUCH EVENT:
(a) The
Borrower had been discharged in a no asset bankruptcy proceeding and no
collateral exists out of which the Loan may be satisfied and all guarantors
or
sureties of the Note, if any, or the obligations contained therein, have
similarly been discharged in no asset bankruptcies.
(b) A
court of competent jurisdiction had entered a final judgment (other than a
bankruptcy decree or judicial foreclosure order) holding that neither the
Borrower nor any guarantors or sureties owe an enforceable obligation to pay
the
holder of the Note or its assignee(s).
(c) The
Failed Bank or Seller had executed and delivered to the Borrower a release
of
liability from all obligations under the Note.
(d) A
title defect exists in connection with the property which is the subject of
a
Contract for Deed and which title defect requires a prior order or judgment
of a
court to enable Buyer to convey title to such property in accordance with the
terms and conditions set forth in the Contract for Deed.
(e) Seller
is not the owner of the Loan (or, in the case of a participation interest in
a
Loan, Seller is not the owner of the pro rata interest in such
participation interest set forth on the attached Schedule of
Loans).
(f) The
Mortgaged Property securing any Loan sold hereunder has Significant
Environmental Contamination. Buyer's recourse with respect to this Section
7.1(f) shall be conditioned upon: (i) the presence of Significant Environmental
Contamination not being disclosed in the Loan, Loan File or other material
made
available by Seller to Buyer prior to submission of a Bid; (ii) such Loan having
a Book Value greater than $250,000.00 as of the Loan Sale Closing Date; and,
(iii) Buyer delivering, along with the notice required by Section 7.4 hereof,
the following, each of which must be satisfactory in form and substance to
Seller in its sole discretion:
29
1. A
Phase I environmental assessment, from a qualified and reputable firm, of the
Mortgaged Property securing the Loan; and,
2. A
Phase II environmental assessment or lead-based paint survey of such Mortgaged
Property from a qualified and reputable firm, which assessment shall confirm
(i)
the existence of Significant Environmental Contamination on such Mortgaged
Property and (ii) that the regulator is likely to require such remediation;
and,
3. Buyer
shall have submitted a written certification of Buyer under penalty of perjury
that no action has been taken by or on behalf of Buyer (i) to initiate
foreclosure proceedings or (ii) to accept a deed-in-lieu-of-foreclosure in
connection with such Loan.
(g) The
Failed Bank, its officers, directors or employees fraudulently caused the
Borrower to receive less than all of the proceeds and benefits of a Note.
Buyer's recourse with respect to this Section 7.1(g) shall be conditioned upon
Buyer delivering, along with the notice required by Section 7.4 hereof, written
evidence of such fraud, which evidence must be satisfactory in form and
substance to Seller in its sole discretion.
7.2. Securities
Laws Right of Rescission. In the event that Buyer is
entitled to and wishes to exercise its rescission rights under any federal
or
state securities law, Buyer shall deliver the notice required by Section 7.4
hereof, together with written evidence of the circumstances giving rise to
Buyer's right to rescission, which evidence must be satisfactory in form and
substance to Seller in its sole discretion.
7.3. Defects
not Qualifying for Repurchase. Neither the absence of
any intervening assignment or any assignment to Seller, nor the existence of
any
lien, claim or encumbrance on the Loan or its Collateral, nor any defect in
the
lien or priority of Seller's security interest in the Collateral shall give
rise
to any claim for repurchase under this Article VII.
7.4. Notice
to Seller. Buyer shall notify Seller of each Loan with
respect to which Buyer seeks repurchase. Such notice shall be on Buyer's
letterhead paper and include the following information: (a) Buyer's tax
identification number, (b) Buyer's wire transfer instructions, (c) the
subsection under Section 7.1 hereof for which Buyer is seeking repurchase and
(d) a summary of the reasons Buyer believes that the Loan(s) should be
repurchased. The notice shall be accompanied by evidence supporting the basis
for repurchase of such Loan. Promptly upon request by Seller, Buyer shall supply
Seller with any additional evidence that Seller may require. Seller shall have
no obligation to repurchase any Loan pursuant to this Article VII for which
notice and all supporting evidence reasonably required by Seller have not been
received by Seller at the addresses specified in Sections 8.2 and 8.3 hereof
no
later than the first Business Day after the expiration of 180 calendar days
after the Loan Sale Closing Date, or in the case of a Contract for Deed, the
first Business Day after the expiration of 360 calendar days after the Loan
Sale
Closing Date.
30
7.5. Re-delivery
of Note(s), Files and Documents. For any Loan that
qualifies for repurchase under this Article, Buyer shall: (a) re-endorse or
reassign and deliver the Note(s) to Seller, (b) reassign all Collateral
Documents associated with such Loan and reconvey any real property subject
to a
Contract for Deed or transferred by quitclaim deed pursuant to Section 2.6
hereof, together with such other documents or instruments as shall be necessary
or appropriate to convey the Loan back to Seller, (c) re-deliver to Seller
the
Loan File, along with any additional records compiled or accumulated by Buyer
pertaining to the Loan, and (d) deliver to Seller a certification, notarized
and
executed under penalty of perjury by a duly authorized representative of Buyer,
certifying that as of the date of repurchase none of the conditions relieving
Seller of its obligation to repurchase the Loan(s) as specified in Section
7.6
hereof has occurred. The documents evidencing such reconveyance shall be
substantially the same as those executed as of Closing pursuant to Article
III
of this Agreement. In all cases where Buyer recorded or filed among public
records any document or instrument evidencing a transfer of the Loan to Buyer,
Buyer shall cause to be recorded or filed among such records a similar document
or instrument evidencing the reconveyance of the Loan to Seller. Upon compliance
by Buyer with the provisions hereof, Seller shall pay to Buyer the Repurchase
Price.
7.6. Waiver
of Buyer's Repurchase Option. Seller will be relieved
of its obligation to repurchase any Loan for any reason set forth in subsections
(a) through (g) of Section 7.1 hereof, if Buyer: (a) modifies any of the terms
of the Loan (including the terms of any Collateral Document or Contract for
Deed); (b) exercises forbearance with respect to any scheduled payment on the
Loan; (c) accepts or executes new or modified lease documents assigned by Seller
to Buyer; (d) sells, assigns or transfers the Loan or any interest therein;
(e)
fails to employ usual and customary care in the maintenance, collection,
servicing and preservation of the Loan, including usual and customary
delinquency prevention, collection procedures and protection of collateral
as
warranted; (f) initiates any litigation in connection with the Loan or the
Mortgaged Property securing the Loan other than litigation to force payment
or
to realize on the Collateral securing the Loan; (g) completes any action with
respect to foreclosure on, or accepts a deed-in-lieu of foreclosure for any
Property securing the Loan; (h) causes, by action or inaction, the priority
of
title to the Loan, Mortgaged Property and other security for the Loan to be
less
than that conveyed by Seller; (i) causes, by action or inaction, the security
for the Loan to be different than that conveyed by Seller, except as may be
required by the terms of the Collateral Documents; (j) causes, by action or
inaction, a claim of third parties to arise against Buyer that, as a result
of
repurchase under this Agreement, might be asserted against Seller; (k) causes,
by action or inaction, a security interest, lien, pledge or charge of any nature
to encumber the Loan to arise; (l) is the Borrower or any Related
Party under such Loan; or (m) makes a disbursement other than an
Advance.
31
Article
VIII
8.1. Notices.
All notices or deliveries required or permitted hereunder shall be in writing
and shall be deemed given when personally delivered to the individual
hereinafter designated or when actually received by means of e-mail, facsimile,
overnight mail or certified mail, return receipt requested, at the following
address or such other address as either party may hereafter designate by notice
to the other party, making specific reference to this Article VIII of this
Agreement. Any notice sent by facsimile must be confirmed by
submission of an original or hard copy on the next Business Day following such
notification.
8.2. Article
VII Notice. Notice required by Article VII (Repurchases at Buyer's
Option) shall be delivered to:
SELLER: Manager,
Asset Claims Administration
FDIC
Asset Claims
Administration
000
00xx Xxxxxx, XX, (Xx.
F-3054)
Xxxxxxxxxx,
X.X.
00000-000
Facsimile:
(000) 000-0000
Senior
Counsel
FDIC
Legal Division
Litigation
Branch, Receivership Section
Special
Issues Xxxx
0000
Xxxxxxx Xxxxx (Xxxx E-7056)
Xxxxxxxxx,
XX 00000
8.3. All
Other Notices. Notice required by any
other provision(s) of this Agreement shall be delivered to:
BUYER: LEAF
Funding, LLC
0000
Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attention: Mr.
Crit XxXxxx, CEO
Telephone
Number: 000-000-0000
Facsimile
Number:
000-000-0000
E-mail Address: xxxxxxx@xxxx-xxxxxxxx.xxx
SELLER: Federal
Deposit Insurance Corporation
Franchise
and Asset Marketing
Branch
0000
Xxxxx Xxxxxx
Xxxxxx,
Xxxxx 00000
32
Federal
Deposit Insurance
Corporation
Regional
Counsel, Litigation
Branch
0000
Xxxxx Xxxxxx
Xxxxxx,
Xxxxx 00000
33
34
Article
X
10.1. Severability.
Each part of this Agreement is intended to be severable. If any term, covenant,
condition or provision hereof is unlawful, invalid or unenforceable for any
reason whatsoever, such illegality, invalidity or unenforceability shall not
affect the legality, validity or enforceability of the remaining parts of this
Agreement and all such remaining parts hereof shall be valid and enforceable
and
have full force and effect as if the invalid or unenforceable part had not
been
included.
10.2. Construction.
Unless the context otherwise requires, singular nouns and pronouns
when
used herein, shall be deemed to include the plural and vice versa and impersonal
pronouns shall be deemed to include the personal pronoun of the appropriate
gender.
10.3. Survival.
Each and every covenant made by Buyer or Seller in this Agreement shall survive
the Closing and shall not merge into the closing documents, but instead shall
be
independently enforceable.
10.4. Governing
Law. Federal law of the United States shall control
this Agreement. To the extent that federal law does not supply a rule of
decision, this Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York. Nothing in this Agreement
will require any unlawful action or inaction by either party.
10.5. Cost,
Fees and Expenses. Except as
otherwise provided herein, each party hereto agrees to pay all costs, fees
and
expenses which it has incurred in connection with or incidental to the matters
contained in this Agreement, including without limitation any fees and
disbursements to its accountants and counsel; provided that Buyer shall pay
all
fees, costs and expenses (other than attorneys' fees incurred by Seller)
incurred in connection with the transfer to it of any Loan
hereunder.
10.6. Nonwaiver,
Amendment and Assignment. No
provision of this Agreement may be amended or waived except in writing executed
by all of the parties to this Agreement. This Agreement and the terms,
covenants, conditions, provisions, obligations, undertakings, rights and
benefits hereof, including the Attachments to this Agreement, shall be binding
upon, and shall inure to the benefit of the undersigned parties and their
respective heirs, executors, administrators, representatives, successors and
assigns. Notwithstanding the foregoing, this Agreement may not be transferred
or
assigned without the express prior written consent of Seller (and any attempted
assignment without such consent shall be void).
10.7. Drafting
Presumption. This Agreement will be construed fairly
as to each party regardless of which party drafted it.
10.8. Controlling
Agreement. Seller and Buyer hereby acknowledge and
agree that this Agreement shall in all instances be the controlling document
with respect to the terms of the sale and transfer of the Loans, Collateral
Documents and Collateral, and the assignment and assumption
of all obligations thereunder. In the event of a conflict between the terms
of
this Agreement and the terms of any other document or instrument executed in
connection herewith and with the transactions contemplated hereby, including,
without limitation, any translation into a foreign language of this Agreement,
any Collateral Document, or any other document or instrument executed in
connection herewith which is prepared for notarization, filing or any other
purpose, the terms of this Agreement shall control, and furthermore, the terms
of this Agreement shall in no way be or be deemed to be amended, modified or
otherwise affected in any manner by the terms of such other document or
instrument.
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10.9. Venue. Buyer
and Seller each hereby irrevocably and unconditionally agree that any legal
action arising under or in connection with the sale, this Agreement or the
transactions contemplated hereby are to be instituted in the United States
District Court in and for the District of Columbia.
10.10. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be one
and
the same instrument.
10.11. Waiver
of Jury Trial. Buyer and Seller each hereby
irrevocably and unconditionally waive any right to have a jury participate
in
resolving any dispute, whether sounding in contract, tort or otherwise, arising
out of or relating to or in connection with the sale of the Loans, this
Agreement or any transaction contemplated hereby.
BUYER: SELLER
FEDERAL DEPOSIT INSURANCE
LEAF
FUNDING,
LLC CORPORATION
AS RECEIVER OF
NETBANK
By: By:
Name: Name:
Title: Title: Attorney-in-Fact
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