EXHIBIT 99.2
LOAN PURCHASE AGREEMENT
(SERVICING RELEASED)
THIS LOAN PURCHASE AGREEMENT, is made and entered into as of September 28,
2006, (hereinafter referred to as the "Agreement"), by and between Monroe Bank &
Trust and its wholly-owned operating subsidiary, MBT Credit Company, Inc., as
sellers (hereinafter collectively referred to as "Seller"), and FirstVal 1, Ltd.
and FirstVal Properties 1, Ltd., as buyers (hereinafter collectively referred to
as "Buyer", or when referring to Real Estate Owned, such reference to Buyer
shall be limited to only FirstVal Properties 1, Ltd. and when referring to all
Loans, other than Real Estate Owned, such reference shall be limited only to
FirstVal 1, Ltd.).
In consideration of the premises and of the mutual agreements contained
herein, Seller agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, on a whole loan basis, servicing released, certain Loans as described
herein.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. All words and phrases shall have the respective
meanings specified in this Article I for all purposes of this Agreement.
"Adjustment Payment" means an amount determined by multiplying (a) the
difference between (i) the Legal Balance of the Loan as of the Cut-Off Date as
set forth on the Loan Schedule, and (ii) the actual Legal Balance of a Loan as
of the Cut-Off Date, by (b) the Purchase Price Percentage for that Loan.
"Assignment of Mortgage" means, with respect to a Mortgage, an assignment
of the Mortgage in recordable form, notice of transfer, or equivalent instrument
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale and assignment of all of
Seller's right, title and interest in and to the Mortgage to Buyer, to be
prepared and executed by Seller in connection with each Loan purchased by Buyer
hereunder that is secured by a Mortgage.
"Assignment of Security Document" means, with respect to a Security
Document, an assignment of the Security Document, notice of transfer, or
equivalent instrument sufficient under applicable law to reflect the sale and
assignment of all of Seller's right, title, and interest in and to the related
Collateral to Buyer, to be prepared and executed by Seller in connection with
each Loan purchased by Buyer hereunder that is secured by Collateral.
"Borrower" means, with respect to a Note, the person(s) obligated to repay
and perform any other obligations pursuant to the Note.
"Closing Date" means the date on which the Loans shall be conveyed, as
mutually agreed to by Seller and Buyer and set forth in the Purchase
Commitment/Settlement, but not later than [September 30, 2006].
A-1
"Collateral" means the underlying personal property, if any, securing a
Loan, including all proceeds thereof.
"Collateral Schedule" means the schedule, either in written or electronic
form, attached to the related Purchase Commitment/Settlement and delivered by
Seller to Buyer, which identifies: the property address of each parcel of
Mortgaged Property and Real Estate Owned; a description of each item of personal
property serving as Collateral; the Loan or Loans (as identified by the Seller
account number) with respect to which the Mortgaged Property, Real Estate Owned
and/or Collateral provide security; and the priority interest of the Collateral
and Mortgaged Properties with respect to each Loan for which they respectively
provide security.
"Custodial Loan File" means, with respect to a Loan, the file containing
the Loan Documents listed in Section 4.2(a) below.
"Cut-Off Date" is August 31, 2006.
"Legal Balance" means the Legal Balance as indicated on the Loan Schedule.
"Loan" means an individual loan sold by Seller and purchased by Buyer
pursuant to this Agreement that is identified in the Loan Schedule attached to
the Purchase Commitment/Settlement delivered on or prior to the Closing Date,
which loan includes the rights and obligations of a holder thereof and payments
and proceeds received therefrom.
"Loan Documents" means with respect to a Loan, the originals or certified
copies of all of the agreements, certificates, legal opinions or other documents
evidencing or related to such Loan, including the original Note, the original or
certified copy of the recorded Mortgage and Assignment of Mortgage (if the Loan
is secured by a Mortgage), the original or certified copy of all Security
Document(s) and all Assignment(s) of Security Document (if the Loan is secured
by Collateral), any other security documents, the Loan application, the
Borrower's credit report, and the title report for the related Mortgaged
Property (if the Loan is secured by a Mortgage).
"Loan Schedule" means the schedule, either in written or electronic form,
attached to the related Purchase Commitment/Settlement and delivered by Seller
to Buyer, which identifies the Loans being sold by Seller to Buyer pursuant to
this Agreement, and includes certain information regarding such Loans as of the
Cut-Off Date specified therein. The information to be provided shall include the
name of the Borrower, Seller's account number, the Legal Balance, the Purchase
Price Percentage, and the Purchase Price.
"Modified Loan," as used in Section 3.3 of this Agreement. means any Loan
with respect to which the terms of the underlying Note, the related Mortgage (if
any), and/or the related Security Document (if any) have been impaired, waived,
altered or modified in any material adverse respect by Buyer, or the release of
any collateral identified on the Collateral Schedule, since the Closing Date.
"Mortgage" means, with respect to a Loan secured by a Mortgage, the
instrument, including a mortgage or deed of trust, securing such Loan that
creates a lien on the related Mortgaged Property.
A-2
"Mortgaged Property" means the underlying real property, if any, securing a
Loan, including all improvements thereon.
"Note" means, with respect to a Loan, the promissory note or other evidence
of the obligation to repay such Loan.
"Purchase Commitment/Settlement" means a settlement statement,
substantially in the form of Exhibit A attached hereto, by and between Seller
and Buyer pursuant to which Seller agrees to sell and Buyer agrees to purchase
Loans pursuant to this Agreement that are identified on the Loan Schedule
attached to such settlement statement.
"Purchase Price Amount" means the dollar amount paid by Buyer for each
Loan, as identified on the Loan Schedule.
"Purchase Price Percentage" means, with respect to a Loan, and as agreed to
by Seller and Buyer, the price, expressed as a percentage, paid for such Loan as
set forth in the related Purchase Commitment/Settlement, without any adjustment
for any accrued interest, expenses or fees.
"Real Estate Owned" means real property acquired by Seller before the
Closing Date by foreclosure or other means, and which is being sold by Seller
and purchased by Buyer pursuant to this Agreement, as identified in the Loan
Schedule attached to the related Purchase Commitment/Settlement. The Legal
Balance indicated in the Purchase Commitment/Settlement for each parcel of Real
Estate Owned is the most recent appraised value thereof contained in Seller's
files.
"Security Document" means, with respect to a Loan secured by Collateral,
the security agreement and/or other documents and instruments, if any, that
grant a security interest in the Collateral to Seller.
"Servicer" means any party who has agreed to service the Loans on behalf of
Buyer.
"Servicing Loan File" means, with respect to a Loan, the file containing
originals or copies of all Loan Documents, except for those Loan Documents
included in the related Custodial Loan File.
"Servicing Transfer Date" means the date on which the servicing functions
for Loans shall be transferred from Seller to Buyer, as set forth in the related
Purchase Commitment/Settlement; the Servicing Transfer Date shall be the Closing
Date for any Loan other than a Loan that is subject to the Real Estate
Settlement Procedures Act.
A-3
ARTICLE II
PURCHASE AND SALE OF THE LOANS
SECTION 2.1 AGREEMENT TO SELL AND PURCHASE THE LOANS. On the Closing Date,
and in consideration for the payment of the Purchase Price by Buyer to Seller,
Seller agrees to sell, transfer, assign and convey to Buyer, and Buyer agrees to
purchase and assume from Seller, all the right, obligations, title and interest
of Seller in and to (i) the Loans set forth in the related Loan Schedule,
including the security interests created by the related Mortgages and Security
Documents, as applicable, (ii) all payments on and collections from such Loans
that are received after the applicable Cut-Off Date, (iii) all rights and
benefits of Seller with respect to any title, flood and fire, hazard and
extended coverage insurance policies that insure any related Mortgaged
Properties or Collateral, as applicable, (iv) the related Loan Documents,
including the Custodial Loan Files and Servicing Loan Files, (v) the servicing
of the Loans, (vi) the Real Estate Owned set forth in the related Loan Schedule,
and (vii) all proceeds in any way derived from any of the foregoing, all upon
the terms and conditions set forth herein.
On the Closing Date, and in consideration for the sale, transfer,
assignment, and conveyance of the Loans by Buyer, Buyer hereby agrees to assume
from Seller all obligations to be performed in connection with the Loans arising
after the Closing Date, including (subject to Section 2.2(b) below) the
servicing of such Loans.
All payments received by Seller for the Loans after the Cut-Off Date shall
belong to Buyer and shall be sent by Seller to Buyer within five (5) business
days of Seller's receipt of any such payments.
SECTION 2.2 RELEASE AND TRANSFER OF SERVICING.
(a) SERVICING RELEASED. On the Closing Date, Seller shall sell and convey
the Loans to Buyer on a whole loan basis with servicing released to Buyer.
(b) SERVICING AGREEMENT. Seller agrees to service the Loans for the period
of time starting on the Closing Date and ending at the close of business on the
Servicing Transfer Date. Seller agrees to service the Loans sold to Buyer in the
manner that is consistent with the servicing practices of a prudent mortgage
lending institution, in accordance with applicable law, and for the benefit of
Buyer. Seller shall advise Buyer of any action necessary during such time period
to enforce the Buyer's rights pursuant to such Loans. Upon completion of
servicing the Loans by Seller pursuant to this Section, Seller shall cause a
report to be produced reflecting all collections of interest and principal on
the Loans during the period from the Closing Date through the Servicing Transfer
Date. Seller shall distribute to Buyer all of the amounts collected or received
during such period. Any payments or proceeds received by Seller during this
interim service period shall be held for the benefit of Buyer. As of the close
of business on the Servicing Transfer Date, the collection and receipt of all
proceeds, interest and principal due on the Loans and actual performance of
servicing shall pass to Buyer, and Seller shall be discharged from all duties
and obligations arising from such servicing and otherwise with respect to the
Loans. If Seller receives any proceeds or payments for the Loans after the
Servicing Transfer Date, Seller shall hold the same in trust for Buyer to be
distributed within five (5) business days of receipt to Buyer. After the close
of business on the Servicing Transfer Date, Seller shall have no further
responsibility to service the Loans.
SECTION 2.3 ESCROW. From the Closing Date through the Servicing Transfer
Date, Seller shall continue to fund escrows in accordance with its past
servicing practices and in accordance with applicable law, and all collected and
undisbursed escrow balance amounts relating to the Loans shall be held by Seller
in trust for Buyer. Seller shall pay over and/or deliver such collected and
undisbursed amounts to Buyer within two (2) business days following the
Servicing Transfer Date.
A-4
SECTION 2.4 EXPENSES. Seller shall be responsible for all expenses of
servicing the Loans through the close of business on the Cut-Off Date. If Real
Estate Owned is included, Seller shall be responsible for all property taxes and
assessments against the property that have been billed through the close of
business on the Cut-Off Date; provided, however, that if any assessments are
amortized and capable of being paid in installments, Seller shall only be
responsible for the payment of installments due and payable through the close of
business on the Cut-Off Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. As of the Closing
Date and as an inducement to Buyer to purchase the Loans on such Closing Date,
Seller represents and warrants to Buyer that:
(a) ORGANIZATION; AUTHORITY. Seller is a state chartered bank, duly
organized, validly existing and in good standing under the laws of the State of
Michigan. Seller is duly qualified and in good standing to transact business,
and possesses all requisite authority, power, licenses, permits and franchises
to execute, deliver and comply with its obligations under this Agreement. The
execution, delivery and the consummation of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate action, and
do not require the consent of or approval of any other agency, person or entity.
(b) LOANS. With respect to each Loan being purchased by Buyer, the
representations and warranties set forth in Exhibit B attached hereto are hereby
incorporated herein by reference. Except for the representations and warranties
set forth in Exhibit B and except for the specific remedies set forth in Section
3.3 below, Seller is selling the Loans to Buyer on an AS IS, WHERE IS basis,
without recourse.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF BUYER. As of the Closing Date
and as an inducement to Seller to sell the Loans on such Closing Date, Buyer
represents and warrants to Seller that Buyer is a limited partnership, duly
organized, validly existing, and in good standing under laws of the State of
Texas. Buyer is duly qualified and in good standing to transact business and
possesses all requisite authority, power, licenses, permits, and franchises to
execute, deliver, and comply with its obligations under this Agreement. The
execution, delivery, and the consummation of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate action and
do not require the consent of or approval of any other agency, person, or
entity.
SECTION 3.3 REMEDIES FOR BREACH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in Section 3.1(b) above shall survive
the sale of the Loans to Buyer for six (6) months after the Closing Date and
shall inure to the benefit of Buyer, notwithstanding any restrictive or
qualified endorsement on any Note, Assignment of Mortgage, or Assignment of
Security Document or Buyer's examination or failure to examine any Loan
Documents. Buyer shall give prompt written notice to Seller of a breach of any
such
A-5
representations and warranties by Seller. For a period of six (6) months
following the Closing Date related to the purchase of a Loan, if any
representation and warranty made by Seller in Section 3.1(b) above with respect
to such Loan was untrue or incorrect in any material respect as of the date made
(a "Defect"), then Seller shall, as to any breach of the representation and
warranty by reason of the Legal Balance of the Loan as of the Cut-Off Date not
being true and correct, pay to the Buyer the Adjustment Payment, and, as to any
other breach of a representation or warranty, at Buyer's option, either (i) cure
such Defect within a period of sixty (60) days from the time it discovers or
receives notice from Buyer of the existence of such Defect, provided that Seller
and Buyer can agree as to the cure to be provided, or (ii) repurchase any Loan
from Buyer that is not a Modified Loan at a price equal to the Purchase Price
Amount Buyer paid for the Loan less the sum of any payments received by Buyer in
relation to the Loan since the Cut-Off Date, or repurchase any modified Loan
from Buyer on such terms as are reasonably acceptable to both Buyer and Seller.
The repurchase proceeds for a Loan repurchased pursuant to this Section shall be
remitted by Seller on the date of repurchase as instructed by Buyer, with notice
to Buyer of the amount of such remittance and the Loan concerned. With respect
to each such repurchase, Buyer shall execute such assignments (in recordable
form, if appropriate) of all of its right, title, and interest in the Loans
being repurchased, as may be reasonably requested by Seller.
ARTICLE IV
CLOSING OF PURCHASE OF LOANS
SECTION 4.1 PAYMENT. On the Closing Date, and in consideration for the sale
of the Loans by Seller on such Closing Date, Buyer shall pay to Seller the
amount of the aggregate Purchase Price with respect to the Loans being sold on
such Closing Date by wire transfer of immediately available funds to the bank
account that is designated by Seller in the related Purchase
Commitment/Settlement. The payment of such aggregate Purchase Price by Buyer
shall be subject to the satisfaction of all of the conditions precedent set
forth in Section 4.3 hereof.
SECTION 4.2 ASSIGNMENT AND DELIVERY OF LOAN DOCUMENTS.
(a) CUSTODIAL LOAN FILE. On the Closing Date, Seller shall deliver to the
Buyer, or its designated custodian, the Custodial Loan File with respect to each
Loan sold to Buyer on such Closing Date, which shall include the following Loan
Documents:
(i) The original Note, or, if not available, a lost note affidavit,
endorsed to the order of Buyer and signed, by facsimile or manual
signature, in the name of Seller by an authorized officer of
Seller,;
(ii) If the Loan is secured by a Mortgage: (A) the original Mortgage,
with evidence of recording thereon, or a copy of the Mortgage
certified by the public recording office in those instances where
the original recorded Mortgage has been lost or retained by the
public recording office, and (B) the original Assignment of
Mortgage from Seller to Buyer;
A-6
(iii) If the Loan is secured by Collateral: (A) all Security Documents
or, if any original Security Document has been lost, a copy of
such Security Document certified as being a true copy to the best
knowledge of an authorized officer of Seller, and (B) the
original Assignment of Security Document from Seller to Buyer;
and
(iv) If applicable, either: (A) originals of all recorded intervening
assignments, if any, showing the ultimate transfer of title from
the originator to Seller, (with evidence of recording thereon, if
applicable), or (B) copies of any recorded assignments certified
by the public recording office in any instances where the
original recorded assignments have been lost or retained by the
public recording office.
(b) SERVICING LOAN FILE. On the Servicing Transfer Date, all Loan Documents
(other than the Custodial Loan File) with respect to the related Loans shall be
included in the Servicing Loan Files for such Loans and be delivered by Seller
to Buyer, or to Buyer's designated Servicer on behalf of Buyer.
SECTION 4.3 ADDITIONAL CONDITIONS TO CLOSING. Buyer's obligation to
consummate the purchase of the Loans that are being sold on the Closing Date
pursuant to this Agreement shall be subject to the satisfaction of the following
conditions:
(i) The related Purchase Commitment/Settlement shall have been
entered into between Seller and Buyer;
(ii) If requested in writing by Buyer, Buyer shall have received, at
least one (1) business day prior to the related Closing Date, the
expected final Loan Schedule on magnetic tape or disk in
computer-readable form; and
(iii) Seller shall provide to Buyer the Loan and Collateral Schedules.
Seller's obligation to consummate the sale of the Loans and any Real Estate
Owned being sold on the Closing Date pursuant to this Agreement shall be subject
to the satisfaction of the following conditions:
(i) The related Purchase Commitment/Settlement shall have been
entered into between Seller and Buyer; and
(ii) Seller shall have received the aggregate Purchase Price for the
Loans from Buyer.
SECTION 4.4 PREPARATION OF FORMS 1098 AND 1099. Seller shall prepare and
distribute to each Borrower, in the name of Seller, forms relating to interest
paid by the Borrower on the related Loan and, to the extent that moneys are paid
to such Borrower, forms relating to interest paid to the Borrower, and shall
report the same to the Internal Revenue Service with respect to the periods
prior to and including the Servicing Transfer Date. Buyer shall prepare and
distribute to each Borrower, in the name of Buyer, forms related to interest
paid by the Borrower on the related Loan and, to the extent that monies are paid
to such Borrower, forms relating to interest paid to the Borrower, and shall
report the same to the Internal Revenue Service with respect to the periods
after the Servicing Transfer Date.
A-7
SECTION 4.5 TRANSFER OF REAL ESTATE OWNED. Subject to the conditions set
forth in Section 4.3 above, on the Closing Date, Seller shall execute and
deliver to Buyer a covenant deed for Real Estate Owned being sold to Buyer,
which deed shall provide that the Real Estate Owned is being transferred in its
"as is" condition, without any representations or warranties of any kind and
subject to all existing liens, restrictions, and other encumbrances of title.
Seller makes no representations or warranties of any nature to Buyer with
respect to such Real Estate Owned.
SECTION 4.6 ADDITIONAL DELIVERIES. Seller and Buyer agree to execute,
acknowledge where appropriate and deliver, or cause to be executed, acknowledged
where appropriate and delivered, such other further instruments and documents
and take such other actions as the other may reasonably request to carry out the
intents and purposes of this Agreement and to effectuate the transfer of the
Loans and Real Estate Owned. In addition, Buyer agrees to promptly provide
Seller, at Seller's expense, with copies of any Loan Documents then in the
possession of Buyer which are reasonably necessary to allow Seller to respond to
or defend against, any claim, suit or other proceeding brought against Seller by
a third party in connection with any Loan.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, without regard
to conflict of laws rules or principles.
SECTION 5.2 ASSIGNMENT. Seller acknowledges that, after the Closing Date,
Buyer may transfer any Loan at any time. Additionally, Seller acknowledges and
agrees that the Buyer may assign its rights and duties under this Agreement to
an entity (the "Assignee") of which the sole owners are (i) FirstCity Commercial
Corporation, or an entity of which all of the equity is owned directly or
indirectly by FirstCity Commercial Corporation and/or (ii) Carval Investors, an
entity affiliated with Cargill Financial Services Corporation. Only the Buyer or
the Assignee will be liable or responsible for the duties and obligations under
this Agreement. All of the terms of this Agreement shall be binding upon and
inure to the benefit of Buyer and Seller and their respective successors and
assigns.
SECTION 5.3 NOTICES. All notices, requests and other communications
hereunder shall be in writing and be deemed to have been given when sent and
received by fax transmission (if receipt by the named recipient is confirmed by
telephone or if a copy is delivered by overnight courier service the next day)
or by overnight courier service (all fees prepaid) to the address of the
recipient party as set forth under such party's name on the signature page
below. Buyer or Seller may designate, by notice given hereunder, any further or
different address to which subsequent notices, certificates and other
communications shall be sent.
SECTION 5.4 INTEGRATED AGREEMENT. This Agreement and the documents,
instruments and agreements executed and delivered pursuant to this Agreement,
constitute the entire agreement between the parties with respect to the subject
of the transactions contemplated hereby and supersede all prior letters or
agreements with respect thereto.
A-8
IN WITNESS WHEREOF, each of the undersigned parties has caused to be duly
executed in its name by its duly authorized officer this Loan Purchase Agreement
as of the date set forth in the opening paragraph.
MONROE BANK & TRUST, AS SELLER
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx, EVP
Fax: 000-000-0000
Phone: 000-000-0000
Email: xxx.xxxxx@xxxxxx.xxx
MBT CREDIT COMPANY, INC., AS SELLER
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx, EVP
Fax: 000-000-0000
Phone: 000-000-0000
Email: xxx.xxxxx@xxxxxx.xxx
FIRSTVAL 1, LTD., AS BUYER
By: FIRSTVAL 1 GP CORP.,
ITS GENERAL PARTNER AS BUYER
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: X.X. Xxx 0000 (xxxx)
Xxxx, Xxxxx 00000-0000
0000 Xxxxxxxx Xxxxx
(delivery only)
Xxxx, Xxxxx 00000
Attention: Legal Department
Fax: 000-000-0000
Phone: 000-000-0000
Email: xxxxxxxx@xxxx.xxx
A-9
FIRSTVAL PROPERTIES 1, LTD., AS BUYER
By: FIRSTVAL PROPERTIES 1 GP CORP.,
ITS GENERAL PARTNER, AS BUYER
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: X.X. Xxx 0000 (xxxx)
Xxxx, Xxxxx 00000-0000
0000 Xxxxxxxx Xxxxx
(delivery only)
Xxxx, Xxxxx 00000
Attention: Legal Department
Fax: 000-000-0000
Phone: 000-000-0000
Email: xxxxxxxx@xxxx.xxx
A-10
EXHIBIT A
PURCHASE COMMITMENT/SETTLEMENT
FirstVal 1, Ltd., as Buyer
X.X. Xxx 0000 (xxxx)
Xxxx, Xxxxx 00000-0000
0000 Xxxxxxxx Xxxxx (delivery only)
Xxxx, Xxxxx 00000
Re: LOAN PURCHASE AGREEMENT DATED AS OF SEPTEMBER 28, 2006 (THE
"AGREEMENT") BY AND BETWEEN MONROE BANK & TRUST AND MBT CREDIT
COMPANY, INC., AS SELLER, AND FIRSTVAL 1, LTD. AND FIRSTVAL PROPERTIES
1, LTD., AS BUYER
Pursuant to the Agreement, Seller hereby requests that Buyer purchase the
Loans described herein as follows:
Closing Date: September 28, 2006
Servicing Transfer Date
(RESPA covered loans): October 16, 2006
Servicing Transfer Date
(Non-RESPA covered loans): September 28, 2006
Cut-Off Date: August 31, 2006
Loans: See attached Loan Schedule
Aggregate Legal Balance at Cut-Off Date: $28,397,522.78
Purchase Price Percentage: See attached Loan Schedule
Total Purchase Price: $14,253,774
Wire Transfer Instructions: Monroe Bank & Trust
ABA: 000000000
Attention: Xxxx Xxxxxxx
Seller hereby agrees that the Loans described herein shall comply with the
representations, warranties and covenants set forth in the Agreement, subject to
the terms and conditions of the Agreement. On the Closing Date and upon receipt
by Seller or its agent of the aggregate Purchase Price for such Loans by wire
transfer of immediately available funds to the bank account set forth above,
Seller hereby sells, transfers, assigns and conveys to Buyer all of the right,
title and interest of Seller in and to such Loans, and Seller agrees to transfer
and deliver to Buyer or its custodian the Loan Documents for such Loans as
required under the Agreement.
Subject to the terms of the Agreement, please confirm the agreement of
Buyer to purchase the Loans described herein (i) by signing this original and
two duplicate originals of this Purchase Commitment/Settlement, without any
changes made by Buyer, and (ii) by delivering by fax a copy of an executed
original hereof, with confirmation sent by the delivery of two duplicate
originals by overnight courier to the undersigned.
A-11
IN WITNESS WHEREOF, the undersigned, as a duly authorized officer and on
behalf of Monroe Bank & Trust, as Seller, has executed this Purchase
Commitment/Settlement.
Monroe Bank & Trust, as Seller
Dated: September 28, 2006 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IN WITNESS WHEREOF, the undersigned, as a duly authorized officer and on
behalf of MBT Credit Company, Inc., as Seller, has executed this Purchase
Commitment/Settlement.
MBT Credit Company, Inc., as Seller
Dated: September 28, 2006 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IN WITNESS WHEREOF, the undersigned hereby agrees to the purchase of the
Loans set forth in the attached Loan Schedule and agrees to assume all
obligations to be performed in connection with the Loans arising after the
Closing Date set forth above, all in accordance with and subject to the terms
and conditions of the Agreement.
FirstVal 1, Ltd., as Buyer
By: FirstVal 1 GP Corp.,
its general partner
Dated: September 28, 2006 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IN WITNESS WHEREOF, the undersigned hereby agrees to the purchase of the
Real Estate Owned set forth in the attached Loan Schedule and agrees to assume
all obligations to be performed in connection with the Real Estate Owned arising
after the Closing Date set forth above, all in accordance with and subject to
the terms and conditions of the Agreement.
FirstVal Properties 1, Ltd., as Buyer
By: FirstVal Properties 1 GP Corp.,
its general partner
Dated: September 28, 2006 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-12
LOAN SCHEDULE
A-13
COLLATERAL SCHEDULE
A-14
EXHIBIT B
LOAN REPRESENTATIONS AND WARRANTIES
Reference is hereby made to the Loan Purchase Agreement dated as of
September 28, 2006 (the "Agreement"), between Monroe Bank & Trust and its
wholly-owned operating subsidiary, MBT Credit Company, Inc., collectively as
Seller, and FirstVal 1, Ltd. and FirstVal Properties 1, Ltd., collectively as
Buyer. With respect to each Loan sold under the Agreement, Seller represents and
warrants to Buyer, as of the Closing Date for such Loan, that:
(1) The information pertaining to each Loan set forth in the Loan and
Collateral Schedules was true and correct in all material respects as
of the related Cut-Off Date.
(2) To the best of Seller's knowledge, no fraud or material
misrepresentation was committed in connection with the origination of
such Loan.
(3) Immediately prior to the sale, transfer and assignment to Buyer,
Seller has or will have good and marketable title to the Loan,
including the related Note, the related Mortgage (if any), and the
related Security Document (if any). Seller has the full right, power
and authority to transfer such Loan, including the related Note,
related Mortgage (if any), and the related Security Document (if any),
and at the time of the transfer, Seller will be the sole owner
thereof, subject to no liens, pledges, charges, mortgages,
encumbrances, or rights of others.
(4) If the Loan is secured by a Mortgage, such Mortgage has not been
satisfied, canceled, subordinated, or rescinded, in whole or in part,
and the related Mortgaged Property has not been released from the lien
of the Mortgage, in whole or in part, nor has any instrument been
executed that would result in any such release, cancellation,
subordination or rescission.
(5) If the Loan is secured by one or more Security Documents, none of such
Security Documents has been satisfied, cancelled, subordinated, or
rescinded, in whole or in part, and the related Collateral has not
been released from the lien of the Security Document, in whole or in
part, nor has any instrument been executed that would result in any
such release, cancellation, subordination, or rescission.
(6) The terms of the Note, the related Mortgage (if any), and the related
Security Document (if any) have not been impaired, waived, altered or
modified in any material respect, except by written instruments which
have been provided to Buyer as part of the Loan Documents.
(7) If the Loan is secured by a Mortgage, such Mortgage is a valid,
existing and enforceable lien on the related Mortgaged Property,
having the priority indicated in the Collateral Schedule.
(8) If the Loan is secured by one or more Security Documents, such
Security Documents create a valid, existing, and enforceable lien on
the related Collateral.
B-21
(9) The related Note is genuine and is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its
terms.
(10) To the best of the Seller's knowledge, there are no actions, suits or
proceedings pending or threatened pertaining to any Loan before any
court or governmental department, commission, board, bureau, agency or
instrumentality which, if determined adversely, would have a material
adverse effect on the value of such Loan.
Each representation or warranty set forth above regarding the enforceability of
any document or instrument is subject to the provisions of bankruptcy,
insolvency, reorganization, or similar laws affecting the enforceability of
creditor's rights generally from time to time in effect, and equitable
principles relating to the granting of specific enforcement and other equitable
remedies as a matter of judicial discretion.
B-22
