Attached files
Exhibit
10.1
LOAN SALE AGREEMENT
BY AND BETWEEN
FEDERAL DEPOSIT INSURANCE CORPORATION,
AS RECEIVER FOR HOME NATIONAL BANK, BLACKWELL,
OKLAHOMA
AS RECEIVER FOR HOME NATIONAL BANK, BLACKWELL,
OKLAHOMA
AND
ENTERPRISE BANK & TRUST, ST. LOUIS,
MISSOURI
| Federal Deposit Insurance Corporation | Loan Pool Numbers(s): | ||
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
TABLE OF CONTENTS
|
Article
I
Definitions |
|||
| 1. | Definitions | 1 | |
| Article II | |||
| Purchase and Sale of Loans | |||
| 2.1. | Terms and Conditions of Sale | 7 | |
| 2.2. | Closing and Payment of Purchase Price | 7 | |
| 2.3. | Allocation of Payments Made on Loans | 8 | |
| 2.4. | Adjustments to Purchase Price; Offsets Against Deposits | 8 | |
| 2.5. | Rebates and Refunds | 9 | |
| 2.6. | Interest Conveyed | 9 | |
| 2.7. | Retained Claims and Release | 9 | |
| 2.8. | Taxes | 9 | |
| 2.9. | Loans Made After the Date of the Information Package | 10 | |
| Article III | |||
| Transfer of Loan(s), Collateral Documents and Servicing | |||
| 3.1. | Delivery of Documents | 10 | |
| 3.2. | Recordation of Documents | 13 | |
| 3.3. | Transfer of Servicing | 13 | |
| Article IV | |||
| Representation and Warranties of Buyer | |||
| 4.1. | Buyer's Authorization | 14 | |
| 4.2. | Compliance with Law | 14 | |
| 4.3. | Execution and Enforceability | 14 | |
| 4.4. | Representations Remain True | 14 | |
| Article V | |||
| Covenants, Duties and Obligations of Buyer | |||
| 5.1. | Servicing of Loans | 14 | |
| 5.2. | Disbursements of Principal | 15 | |
| 5.3. | Collection Agency/Contingency Fee Agreements | 15 | |
| 5.4. | Insured or Guaranteed Loans | 15 | |
| 5.5. | Buyer's Due Diligence | 15 | |
| 5.6. | Reporting to or for the Applicable Taxing Authorities | 16 | |
| Federal Deposit Insurance Corporation | i | Loan Pool Numbers(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
| 5.7. | Loans in Litigation | 16 | |
| 5.8. | Loans in Bankruptcy | 17 | |
| 5.9. | Loan Related Insurance | 17 | |
| 5.10. | Loans with Escrow Accounts | 17 | |
| 5.11. | Loans in which Seller was the Lead Lender in a Participated Loan | 18 | |
| 5.12. | Contracts for Deed | 18 | |
| 5.13. | Leases | 18 | |
| 5.14. | Files and Records | 18 | |
| 5.15. | Reimbursement for Use of Seller's Employees | 18 | |
| 5.16. | Notice to Borrowers | 19 | |
| 5.17. | Notice of Claim | 19 | |
| 5.18. | Reserved | 19 | |
| 5.19. | Prior Servicer Information | 19 | |
| 5.20. | Release of Seller | 19 | |
| 5.21. | Indemnification | 20 | |
| 5.22. | Borrower as Buyer | 20 | |
| Article VI | |||
| Loans Sold "As Is" and Without Recourse | |||
| 6.1. | Loans Sold "As Is" | 20 | |
| 6.2. | No Warranties or Representations with Respect to Escrow Accounts | 21 | |
| 6.3. | No Warranties or Representations as to Amounts of Unfunded Principal | 21 | |
| 6.4. | Disclaimer Regarding Calculation or Adjustment of Interest on any Loan | 21 | |
| 6.5. | No Warranties or Representations with Regard to Due Diligence Data | 21 | |
| 6.6. | Buyer's Waiver of Cause of Action | 21 | |
| 6.7. | Intervening or Missing Assignments | 21 | |
| 6.8. | No Warranties or Representations as to Documents | 21 | |
| Article VII | |||
| Reserved | |||
| Article VIII | |||
| Notices | |||
| 8.1. | Notices | 22 | |
| 8.2. | Reserved | 22 | |
| 8.3. | All Other Notices | 22 | |
| Federal Deposit Insurance Corporation | ii | Loan Pool Numbers(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
| Article IX | |||
| Condition Precedent | |||
| 9.1. | Failure to Close | 23 | |
| Article X | |||
| Miscellaneous Provisions | |||
| 10.1. | Severability | 23 | |
| 10.2. | Construction | 23 | |
| 10.3. | Survival | 23 | |
| 10.4. | Governing Law | 23 | |
| 10.5. | Cost, Fees and Expenses | 23 | |
| 10.6. | Nonwaiver, Amendment and Assignment | 23 | |
| 10.7. | Drafting Presumption | 24 | |
| 10.8. | Controlling Agreement | 24 | |
| 10.9. | Venue | 24 | |
| 10.10. | Counterparts | 24 | |
| 10.11. | Waiver of Jury Trial | 24 | |
| Attachments | |||
| Attachment "A"--Schedule of Loans | A-1 | ||
| Attachment "B"--Not Applicable | |||
| Attachment "C"--Bill 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”-- Shared-Loss Agreements | H-1 | ||
| Federal Deposit Insurance Corporation | iii | Loan Pool Numbers(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
LOAN SALE AGREEMENT
LOAN POOL NUMBER(S): Pool “A”
THIS AGREEMENT, entered into as of
the 9th day of July, 2010, by and between the Federal
Deposit Insurance Corporation (the "FDIC"), as Receiver of Home National Bank,
Blackwell, Oklahoma ("Seller"), and Enterprise Bank & Trust, St. Louis,
Missouri ("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.
NOW THEREFORE, Seller and Buyer
agree and represent as follows:
Article I
Definitions
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.
| Federal Deposit Insurance Corporation | 1 | Loan Pool Numbers(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
"Bid" means the offer to purchase one or more Loan
Pool(s) that was submitted by Buyer and accepted by Seller.
"Bid Award Date" means the date the Bid Confirmation Letter is
sent to Buyer by Seller.
"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 Percentage" means Buyer's offer, expressed as a
percentage of Book Value, to purchase a Loan Pool.
"Bill of Sale" means a Bill of Sale in the form of
Attachment "C" to this Agreement.
"Book Value" means a Loan's unpaid principal balance as
stated on the Accounting Records of the Failed Bank 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 the Failed Bank subsequent to the date of the Information
Package. 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 Accounting
Records of the Failed Bank.
"Borrower" means any obligor, guarantor or surety of any
Loan or any other party liable for the performance of obligations associated
with any Loan.
"Business Day" means any day other than a Saturday, Sunday
or federal legal holiday.
"Calculation Date" means Bank Closing Date, which date shall be
used to calculate the Purchase Price. For each Loan in Loan Pools serviced by
others, "Calculation Date" means the date of the most recent remittance report
prior to the Loan Sale Closing Date.
"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).
| Federal Deposit Insurance Corporation | 2 | Loan Pool Numbers(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
"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
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.
"Confidentiality Agreement"
means the confidentiality
agreement executed or assented to by Buyer in anticipation of gaining access to
the 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 Buyer's system of record, which date
shall be a Business Day not later than ninety (90) 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.
| Federal Deposit Insurance Corporation | 3 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
"Failed
Bank" means Home National
Bank, Blackwell, Oklahoma.
"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.
"Information
Package" means the
compilation of financial and other data with respect to the Failed Bank entitled
"Information Package" dated as of May 20, 2010, and any amendments or
supplements thereto provided to the Buyer by the Corporation.
"Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States, as it may
be amended from time to time.
"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; (f) all right, title and interest in and to any Deficiency Balance;
and (g) any other asset 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) include Other Real
Estate.
"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 set forth in Attachment "A" to this
Agreement.
"Loan Pool Combination"
means a group of Loan
Pools for which Buyer submitted a Bid linking the purchase of the Loan Pools to
one another.
"Loan Sale" means the sale of Loans of the Failed Bank by
Seller.
| Federal Deposit Insurance Corporation | 4 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
"Loan Sale Closing
Date" means no later than
2:00PM CDT on a date that is no later than July 14, 2010.
"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.
"Non-Foreign Loan"
means any Loan which is
not a Foreign Loan.
"Non-Performing Loan(s)" means any Loan 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.
Section 1.01 "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 Real
Estate" means all
interests in real estate (other than Bank Premises and Fixtures) as identified
on the Schedule of Loans set forth in Attachment “A” hereto, including but not
limited to mineral rights, leasehold rights, condominium and cooperative
interests, air rights and development rights that are owned by the Failed
Bank.
"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.
"Performing Loan" means any Loan 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.
| Federal Deposit Insurance Corporation | 5 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
"Property" means the real or personal property securing
any Loan contained in a Loan Pool.
"Purchase Price" means, an amount equal to the sum of (i) the
Book Value of all Loans multiplied by the Bid Percentage of eighty-seven and
one-half percent (87.5%), plus (ii) Disbursements of Principal made by Seller
that are not included in the Book Value, plus (iii) any Advances made by the
Failed Bank or Seller, 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. 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 Information Package and executed by Buyer in connection with the Loan
Sale.
"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.
"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.
"Schedule of Loans" means the
list of all Loans that are the subject of this transaction appended to this
Agreement as Attachment "A."
"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.
"Shared-Loss Agreements"
means the Single Family
Shared-Loss Agreement and the Commercial Shared-Loss Agreement attached hereto
as Attachment "H."
"Tax Certificate" 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 each relevant Foreign Jurisdiction and jurisdiction in
which Buyer, its lending or other relevant office or agents may be located, (i)
no Taxes are payable by Seller or Buyer, or if any such 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 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.
| Federal Deposit Insurance Corporation | 6 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
"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 any Foreign Jurisdiction or 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 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.
"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 Bill 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.
Article II
Purchase and Sale of Loans
Purchase and Sale of Loans
2.1. Terms and Conditions of
Sale. Seller agrees to
sell, assign, transfer and convey to Buyer, and Buyer agrees to purchase and
accept from Seller, all the right, title and interest of Seller, subject to the
provisions of Section 3.3, as of the Bank Closing Date, in and to each Loan in
the Loan Pool(s) on a servicing-released basis, and all rights in the Property
pursuant to the Collateral Documents. Seller agrees to assign and Buyer agrees
to assume all of the Obligations of the Failed Bank or Seller under and with
respect to all the Notes and Collateral Documents. Such sale, assignment,
transfer and conveyance by Seller and the purchase, acceptance and assumption by
Buyer shall occur at and as of the Bank Closing Date, and shall be on the terms
and subject to the conditions set forth in this Agreement, including without
limitation, the payment by Buyer of the Purchase Price. Seller and Buyer agree
that after the Bank Closing Date, the Loans sold and purchased hereunder shall
be subject to the terms of the Shared-Loss Agreements attached hereto as
Attachment “H.”
2.2. Closing and Payment of Purchase Price. The Closing shall occur on the Loan Sale
Closing Date, and, at Seller's option, be either by mail or conducted in person
at a place designated by Seller. Buyer shall pay to Seller at the Closing, by
wire transfer of immediately available funds the amount of the Purchase Price.
Wire transfers shall be made to Seller's account in accordance with such
instructions as Seller shall notify to Buyer in writing on or prior to the Loan
Sale Closing Date.
| Federal Deposit Insurance Corporation | 7 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
2.3. Allocation of Payments Made on
Loans. All payments
received by Seller on account of any of the Loans on or before the Calculation
Date shall belong to Seller. All payments received by Seller on account of the
Loans after the Calculation Date shall belong to Buyer. In the event that a
check Seller has received with respect to a Loan on or before the Calculation
Date is dishonored before or after the Calculation Date, an adjustment to the
Purchase Price in Seller's favor in the amount of the dishonored check shall be
made within ten (10) days of notification by Seller to Buyer that a check has
been dishonored. In the event Seller deposits a check received after the
Calculation Date and issues a check or other payment therefor to Buyer, Buyer
shall bear the risk that any such check will be dishonored and Buyer shall
reimburse Seller within ten (10) Business Days after receipt of notice by Seller
to Buyer that such check was dishonored.
2.4. Adjustments to Purchase Price; Offsets Against
Deposits.
(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; 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 any
changes resulting from any calculation or adjustment of interest on any Loan as
provided in Section 6.4 hereof. 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 the Bank Closing Date.
| Federal Deposit Insurance Corporation | 8 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
2.5. Rebates and Refunds. Buyer is not entitled to any rebates or
refunds from Seller from any pre-computed interest Loan regardless of when the
Note matures. Further, on precomputed interest Loans, Seller will not refund any
unearned discount amounts to Buyer.
2.6. Interest Conveyed.
Seller shall convey all of its right, title and interest in and to each Loan. In
the event a foreclosure occurs after the Calculation Date, or occurred on or
before the Calculation Date, but the Redemption Period had not expired on or
before the Calculation Date, Seller shall convey to Buyer the Deficiency
Balance, if any, together with the net proceeds, if any, of such foreclosure
sale. If Seller was the purchaser at such foreclosure sale, Seller shall convey
to Buyer the Deficiency Balance, if any, together with a quitclaim deed to the
property purchased at such foreclosure sale. Buyer acknowledges and agrees that
Buyer shall not 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.
2.7. Retained Claims and Release. Buyer and Seller agree that the sale of the
Loans pursuant to this Agreement will exclude the transfer to Buyer of all
right, title and interest of Seller in and to any and all claims of any nature
whatsoever that might now exist or hereafter arise, whether known or unknown,
that Seller has or might have (a) against officers, directors, employees,
insiders, accountants, attorneys, other persons employed by Seller or the Failed
Bank and any of its predecessors, underwriters or any other similar persons who
have caused a loss to Seller or the Failed Bank and any of its predecessors in
connection with the initiation, origination or administration of a Loan, (b)
against any appraisers, accountants, auditors, attorneys, investment bankers or
brokers, loan brokers, deposit brokers, securities dealers or other professional
individuals or entities who performed services for the Seller or the Failed Bank
or any of its predecessors, relative to a Loan, (c) against any third parties
involved in any alleged fraud or other misconduct relating to the making or
servicing of a Loan or (d) against any appraiser or other party from whom Seller
or any servicing agent contracted for services or title insurance in connection
with the making, insuring or servicing of a Loan.
2.8. Taxes.
Notwithstanding that 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 Taxes,
and Seller shall have no obligation to reimburse Buyer therefor. Payment of
Taxes shall not affect the Purchase Price. Within thirty days after the Loan
Sale Closing Date, Buyer shall deliver to Seller a Tax Certificate in accordance
with Section 3.1 hereof. In the event that the Tax Certificate shall prove to
have been incorrect or for any other reason Buyer becomes
aware of Taxes due, Buyer shall promptly notify Seller and shall pay such Taxes
in accordance with the provisions of this Section 2.8. In the event that 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 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 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 Taxes that such payment has been
made.
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2.9. Loans Made After the Date of the Information
Package. Loans made after
the date of the Information Package may be placed, in the sole discretion of
Seller, in a Loan Pool of like Loans, and such Loans shall be purchased by Buyer
on the same terms and conditions as the other Loans in the Loan
Pool(s).
Article III
Transfer of Loan(s), Collateral Documents and Servicing
Transfer of Loan(s), Collateral Documents and Servicing
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. 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 Bill 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.
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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. Such Transfer Documents executed by Seller as Seller elects to deliver
at Closing, including, without limitation, quitclaim deed(s) where appropriate,
transferring all of Seller’s right, title and interest in and to any Loan(s)
that are comprised of Other Real Estate.
(c)
Within thirty days after the Loan Sale Closing Date, Buyer shall deliver the Tax
Certificate 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 [insert applicable capacity(ies)] | ||
| By: | ||
| Name: | ||
| Title: | Attorney-in-Fact | |
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All other documents
of assignment, conveyance or transfer shall contain this sentence: “This
_____________________ [assignment or conveyance or transfer, as the case may
be] is made without
recourse, representation or warranty, express or implied, by the FDIC in its
corporate capacity or as Receiver.”
(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.
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(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 the Loans or the related servicing rights, if any, or the
assumption by the Buyer of the Obligations.
(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 Taxes, fees, costs and
expenses incurred in connection therewith, including without limitation
notarization fees and stamp, transfer and similar Taxes or fees.
3.3. Transfer of Servicing. The Loans are hereby sold and conveyed to Buyer subject to servicing
agreements, if any, which Buyer will assume. From and after the Bank Closing
Date, all rights, obligations, liabilities and responsibilities with respect to
the servicing of the Loans shall pass to Buyer, and Seller shall be discharged
from all liability therefor, including any liability arising from any limited
interim servicing provided by Seller pursuant to this Section 3.3.
To provide for the orderly transfer of the
servicing to Buyer, Seller will provide, at Seller’s expense, limited interim
servicing of the Loans on Buyer’s behalf from the Bank Closing Date through the
Deconversion Date, as follows: (i) receive payments and post them to the system
of record, (ii) maintain records reflecting payments received, (iii) provide
Buyer on request a schedule of payments processed, and (iv) provide payoff
information to Buyer regarding particular Loans as applicable. Seller may engage
agents of Seller’s own choosing to perform such limited interim servicing.
Seller’s performance of this limited interim servicing shall cease on the
Deconversion Date.
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Article IV
Representation and Warranties of Buyer
Representation and Warranties of Buyer
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
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.
Article V
Covenants, Duties and Obligations of Buyer
Covenants, Duties and Obligations of Buyer
5.1. Servicing of Loans. From and after the Deconversion Date, 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.
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5.2. Disbursements of Principal. Buyer accepts and assumes and expressly
agrees to perform in accordance with the terms, all Obligations under the Note
or the 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.
5.5. Buyer's Due Diligence. Buyer represents that it has made an independent evaluation of the Loan
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.
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5.6 Reporting to or for the Applicable Taxing
Authorities. The Seller
shall be responsible for submitting all Internal Revenue Service information
returns related to the Loans sold hereunder for all applicable periods prior to
the Deconversion Date. The Buyer shall be responsible for submitting all
Internal Revenue Service information returns related to the Loans sold hereunder
for all applicable periods commencing with the Deconversion Date. Information
returns include 1098 and 1099 reporting. 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 sold hereunder, 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, 1601 Bryan St., Dallas, Texas 75201, 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.
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.
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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.
5.9. Loan Related Insurance. As of the Bank 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 Bank 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. Buyer agrees to assume, undertake and
discharge any and all Obligations of the holder of the Loans with respect to any
escrow, maintenance of escrow and payments from escrow of monies paid by or on
account of the Borrower. Seller shall transfer to Buyer that sum of monies held by Seller as of the
Deconversion Date, which represents undisbursed escrow payments.
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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.
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:
(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 $75.00 per hour per employee or the then
prevailing hourly rate per employee charged by Seller or the FDIC to perform
such services, plus all associated travel, lodging and per diem costs. Seller shall, in its sole and
absolute discretion, determine and assign the personnel necessary to perform
said acts. Buyer also agrees to reimburse Seller for copies made in the course
of performing said acts at the rate of 25 cents ($.25) per copy. Nothing in this
section shall require Seller to provide Buyer with any information or service in
this regard.
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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 $75.00 per hour per employee or the then
prevailing hourly rate per employee charged by Seller or the FDIC to perform
such services, plus all associated travel, lodging and per diem costs. Seller
shall, in its sole and absolute discretion, determine and assign the personnel
necessary to perform said acts. Buyer also agrees to reimburse Seller for copies
made in the course of performing said acts at the rate of 25 cents ($.25) per
copy. Nothing in this section shall require Seller to provide Buyer with any
information or service in this regard.
5.17. 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 or Loan Pool Combination purchased by
Buyer that may come to its attention.
5.18. Reserved.
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) 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.
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| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
(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.
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.
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. 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.
Article VI
Loans Sold “As Is” and Without Recourse
Loans Sold “As Is” and Without Recourse
6.1. Loans Sold “As Is.”
THE LOANS ARE SOLD "AS IS" AND "WITH ALL FAULTS," WITHOUT ANY REPRESENTATION,
WARRANTY OR RECOURSE WHATSOEVER AS TO EITHER COLLECTIBILITY, CONDITION, FITNESS
FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR
IMPLIED. SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE LOANS,
THE STRATIFICATION OR PACKAGING OF THE LOANS, THE
COLLATERAL OR THE COLLATERAL DOCUMENTS.
| Federal Deposit Insurance Corporation | 20 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
6.2. No Warranties or
Representations with Respect to Escrow Accounts. Seller makes no warranties or
representation of any kind or nature as to the sufficiency of funds held in any
escrow account to discharge any obligations related in any manner to an escrow
obligation, as to the accuracy of the amount of any monies held in any escrow
account or as to the propriety of any previous disbursements or payments from
any escrow account.
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 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.
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 Bill 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.
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| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
Article VII
Reserved
Reserved
Article VIII
Notices
Notices
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. Reserved.
8.3. All Notices. Notice
required by any provision(s) of this Agreement shall be delivered
to:
| BUYER: | Enterprise Bank & Trust | |
| 150 North Meramec, Suite 300 | ||
| St. Louis, Missouri | ||
| Attention: | Frank H. Sanfilippo | |
| Telephone Number: | (314) 512-7214 | |
| Facsimile Number: | (314) 812-1576 | |
| E-mail Address: | FSanfilippo@enterprisebank.com | |
| SELLER: | Federal Deposit Insurance Corporation | |
| Franchise and Asset Marketing Branch | ||
| 1601 Bryan Street | ||
| Dallas, Texas 75201 | ||
| Federal Deposit Insurance Corporation | ||
| Regional Counsel, Litigation Branch | ||
| 1601 Bryan Street | ||
| Dallas, Texas 75201 | ||
| Federal Deposit Insurance Corporation | 22 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
Article IX
Condition Precedent
Condition Precedent
9.1 Failure to Close. The obligations of the parties to this
Agreement are subject to Seller and the Corporation having received at or before
the Bank Closing Date evidence reasonably satisfactory to each of any necessary
approval, waiver, or other action by any governmental authority, the board of
directors of the Buyer, or other third party, with respect to this Agreement and
the transactions contemplated hereby, of the closing of the Failed Bank and the
appointment of Seller, the chartering of the Buyer, and any agreements,
documents, matters or proceedings contemplated hereby or thereby.
Article X
Miscellaneous Provisions
Miscellaneous Provisions
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).
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| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
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, except in the event of
a conflict with the Shared-Loss Agreements, in which case, the terms of the
Shared Loss Agreements shall control. In the event of a conflict between the
terms of this Agreement and the terms of any other document or instrument (other
than the Shared-Loss Agreements) 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. Furthermore, with the exception of the Shared Loss Agreements, 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.
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.
[Signature page follows]
| Federal Deposit Insurance Corporation | 24 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |
THIS LOAN SALE AGREEMENT is executed as of the
day and year first set forth above.
| BUYER: | SELLER | |||
| ENTERPRISE BANK & TRUST, | FEDERAL DEPOSIT INSURANCE | |||
| a Missouri trust company with banking | CORPORATION, as Receiver of | |||
| powers | HOME NATIONAL BANK, Blackwell, OK | |||
| By: | /s/ John G. Barry | By: | /s/ Daniel M. Bell | |
| Name: | Name: | |||
| Title: | EVP | Title: | Attorney-in-Fact | |
| Federal Deposit Insurance Corporation | 25 | Loan Pool Number(s): | |
| Loan Sale Agreement | Pool “A” | ||
| Version 1.5 (FM) | |||
| 09.27.04 |