LOAN SALE AGREEMENT BY AND BETWEEN FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF NETBANK, ALPHARETTA, GEORGIA AND LEAF FUNDING, LLC
BY
AND BETWEEN
FEDERAL
DEPOSIT INSURANCE CORPORATION
AS
RECEIVER OF NETBANK, ALPHARETTA, GEORGIA
AND
LEAF
FUNDING, LLC
TABLE
OF CONTENTS
Article
I
Definitions
|
1.
|
Definitions
|
1
|
Article
II
Purchase
and Sale of Loans
|
2.1.
|
Terms
and Conditions of Sale
|
10
|
|
2.2.
|
Closing
and Payment of Purchase Price
|
10
|
|
2.3.
|
Allocation
of Payments Made on Loans
|
10
|
|
2.4.
|
Adjustments
to Purchase Price; Offsets Against Deposits
|
10
|
|
2.5.
|
Rebates
and Refunds
|
11
|
|
2.6.
|
Interest
Conveyed
|
11
|
|
2.7.
|
Retained
Claims and Release
|
12
|
|
2.8.
|
Other
Taxes
|
12
|
Article
III
Transfer
of Loan(s), Collateral Documents and Servicing
|
3.1.
|
Delivery
of Documents
|
13
|
|
3.2.
|
Recordation
of Documents
|
16
|
|
3.3.
|
Transfer
of Servicing
|
16
|
Article
IV
Representation
and Warranties of Buyer
|
4.1.
|
Buyer's
Authorization
|
18
|
|
4.2.
|
Compliance
with Law
|
18
|
|
4.3.
|
Execution
and Enforceability
|
18
|
|
4.4.
|
Representations
Remain True
|
18
|
Article
V
Covenants,
Duties and Obligations of Buyer
|
5.1.
|
Servicing
of Loans
|
19
|
|
|
5.2.
|
Assumption
of Obligations
|
19
|
|
|
5.3.
|
Collection
Agency/Contingency Fee Agreements
|
19
|
|
|
5.4.
|
Insured
or Guaranteed Loans
|
19
|
|
|
5.5.
|
Buyer's
Due Diligence
|
20
|
|
|
5.6.
|
Reporting
to or for the Applicable Taxing Authorities
|
20
|
|
|
5.7.
|
Loans
in Litigation
|
20
|
|
|
5.8.
|
Loans
in Bankruptcy
|
21
|
|
i
|
5.9.
|
Loan
Related Insurance
|
22
|
|
5.10.
|
Loans
with Escrow Accounts and Security Deposits
|
22
|
|
5.11.
|
Loans
in which Seller was the Lead Lender in a Participated Loan
|
22
|
|
5.12.
|
Contracts
for Deed
|
22
|
|
5.13
|
Leases
|
22
|
|
5.14.
|
Files
and Records
|
22
|
|
5.15.
|
Reimbursement
for Use of Seller's Employees
|
23
|
|
5.16.
|
Notice
to Borrowers
|
23
|
|
5.17.
|
Notice
of Claim
|
24
|
|
5.18.
|
Use
of the FDIC's Name and Reservation of Statutory Powers
|
24
|
|
5.19.
|
Prior
Servicer Information
|
24
|
|
5.20.
|
Release
of Seller
|
24
|
|
5.21.
|
Indemnification
|
25
|
|
5.22.
|
Borrower
as Buyer
|
25
|
|
5.23.
|
Accounts
Payable/Brokerage Commissions
|
25
|
|
5.24.
|
Payment
of Taxes
|
26
|
|
5.25.
|
Assignment
of Servicing Agreements
|
26
|
|
5.26.
|
Purchase
of Platform-related Assets and Liabilities
|
26
|
Article
VI
Loans
Sold "As Is" and Without Recourse
|
6.1.
|
Loans
Sold "As Is"
|
27
|
|
6.2.
|
No
Warranties or Representations with Respect to Escrow Accounts
and
Security
Deposits
|
27
|
|
6.3.
|
No
Warranties or Representations as to Amounts of Unfunded
Principal
|
27
|
|
6.4.
|
Disclaimer
Regarding Calculation or Adjustment of Interest on any
Loan
|
27
|
|
6.5.
|
No
Warranties or Representations with Regard to Due Diligence
Data
|
27
|
|
6.6.
|
Buyer's
Waiver of Cause of Action
|
27
|
|
6.7.
|
Intervening
or Missing Assignments
|
28
|
|
6.8.
|
No
Warranties or Representations as to Documents
|
28
|
Article
VII
Repurchase
by Seller at Buyer's Option
|
7.1.
|
Repurchases
at Buyer's Option
|
29
|
|
7.2.
|
Securities
Laws Right of Rescission
|
30
|
|
7.3.
|
Defects
not Qualifying for ▇▇▇▇▇▇▇▇▇▇
|
▇▇
|
|
7.4.
|
Notice
to Seller
|
30
|
|
7.5.
|
Re-delivery
of Note(s), Files and Documents
|
31
|
|
7.6.
|
Waiver
of Buyer's Repurchase Option
|
31
|
Article
VIII
Notices
ii
|
8.1.
|
Notices
|
32
|
|
8.2.
|
Article
VII Notice
|
32
|
|
8.3.
|
All
Other Notices
|
32
|
Article
IX
Forfeiture
of ▇▇▇▇▇▇▇ Money and Other Remedies
|
9.1.
|
Failure
to Close
|
34
|
Article
X
Miscellaneous
Provisions
|
10.1.
|
Severability
|
35
|
|
10.2.
|
Construction
|
35
|
|
10.3.
|
Survival
|
35
|
|
10.4.
|
Governing
Law
|
35
|
|
10.5.
|
Cost,
Fees and Expenses
|
35
|
|
10.6.
|
Nonwaiver,
Amendment and Assignment
|
35
|
|
10.7.
|
Drafting
Presumption
|
35
|
|
10.8.
|
Controlling
Agreement
|
35
|
|
10.9.
|
Venue
|
36
|
|
10.10.
|
Counterparts
|
36
|
|
10.11.
|
Waiver
of Jury Trial
|
36
|
|
10.12.
|
Incorporation
by Reference
|
36
|
Attachments
|
Attachment
"A"---Schedule of Loans
|
A-1
|
|
Attachment
"A-1"-Schedule of Loans
|
A-2
|
|
Attachment
“A-2”-Schedule of Inchoate Agreements
|
A-3
|
|
Attachment
"B"---Repurchase Percentages
|
B-1
|
|
Attachment
"C"---▇▇▇▇ of Sale
|
C-1
|
|
Attachment
"D"---Assignment and Assumption of Interests and
Obligations
|
D-1
|
|
Attachment
"E"---Assignment and Lost Instrument Affidavit
|
E-1
|
|
Attachment
"F"---Affidavit and Assignment of Claim
|
F-1
|
|
Attachment
"G"---Limited Power of Attorney
|
G-1
|
|
Attachment
“H”---Servicing Agreements
|
H-1
|
|
Attachment
“I”---Assignment of Leases
|
I-1
|
|
Attachment
“J”---Master Assignment of Certain Loans and Leases
|
J-1
|
iii
LOAN
POOL NUMBER: NBF-1-07-010
THIS
AGREEMENT, entered into this ___
day of November, 2007 by and between the Federal Deposit Insurance Corporation
("FDIC") as Receiver of NetBank, Alpharetta, Georgia (“Seller”) and LEAF
Funding, LLC ("Buyer") sets forth the terms and conditions whereby Seller agrees
to sell and Buyer agrees to purchase all those Loans set forth in the attached
Schedule of Loans for the consideration herein stated.
NOW
THEREFORE, Seller and Buyer agree
and represent as follows:
Definitions
For
purposes of this Agreement the
following terms shall have the meanings indicated:
"Accounting
Records" means the general ledger and supporting
subsidiary ledgers and schedules.
"Advances"
means the sum of all unreimbursed amounts advanced by or on behalf of the Failed
Bank, Seller or Buyer for the benefit of a Borrower or a third-party advanced
to
meet required scheduled payments, or to protect the Noteholder's lien position
or the Collateral, including payment of ad valorem taxes and hazard and forced
placed insurance as permitted by the terms of any Loan sold
hereunder. Advances do not include Disbursements of Principal or
Corporate Advances.
"Affidavit
and Assignment of
Claim" means an Affidavit and Assignment of Claim in the form of
Attachment "F" to this Agreement.
"Agreement"
means
this
Loan Sale Agreement and the Attachments hereto.
"Assignment
and Assumption of
Interests and Obligations" means an Assignment and Assumption of
Interests and Obligations in the form of Attachment "D" to this
Agreement.
"Assignment
and Lost Instrument
Affidavit" means an Assignment and Lost Instrument Affidavit in the
form of Attachment "E" to this Agreement.
"Attachment"
means any
of the attachments to this Agreement.
"Bank
Closing Date"
means the close of business of the Failed Bank on the date on which the
Chartering Authority closed such institution.
"Bid"
means the offer
to purchase one or more Loan Pool(s) that was submitted by Buyer and accepted
by
the Seller.
1
"Bid
Amount" means,
with respect to a Loan Pool, an amount equal to (i) the sum of the Book Values
for all Loans in a Loan Pool, multiplied by (ii) the corresponding Bid
Percentage.
"Bid
Award Date" means
the date the Bid Confirmation Letter is sent to Buyer by Seller.
“Bid
Certification”
means the document under such title provided to bidders and potential
bidders as part of the Bid Package and executed or assented to by Buyer in
connection with submitting a Bid.
"Bid
Confirmation
Letter" means the letter sent to Buyer by Seller confirming acceptance
of a Bid submitted by Buyer.
"Bid
Instructions"
means the document under such title provided to bidders and potential
bidders.
“Bid
Package” means
the documents that were provided to bidders and potential bidders for the sale
of the Loans, including but not limited to the following: (i)
Invitation to Bid, (ii) Bid Instructions, (iii) Bid Certification, (iv)
Purchaser Eligibility Certification, (v) this Agreement with all Attachments,
and (vi) Loan Spreadsheet(s), all as the same may be modified, amended, revised
or supplemented from time to time.
"Bid
Percentage" means
Buyer's offer, expressed as a percentage of Book Value, to purchase a Loan
Pool.
"▇▇▇▇
of Sale" means a
▇▇▇▇ of Sale in the form of Attachment "C" to this Agreement.
“Book
Value” for Loans which are leases means the outstanding balance of
"gross lease receivables" and "gross lease residuals" net of "unearned discount"
as reflected on the books and records of NBBF as of the Calculation
Date.
"Book
Value" for Loans which are not
leases means a Loan's unpaid principal balance as stated on the books and
records of NBBF as of Bank Closing Date and adjusted by (i) subtracting payments
of principal received by Seller or its predecessor on or before the Calculation
Date (including any adjustments made as a result of a foreclosure sale on or
before the Calculation Date as to which the Redemption Period, if any, expired
on or before the Calculation Date), (ii) adding Disbursements of Principal
made
by Seller or its predecessor on or before the Calculation Date, and (iii) adding
back any principal previously charged or written off by NBBF. Book
Value for pre-computed interest Loans shall include, in addition, the amount
of
outstanding earned and unearned interest for such Loans. The Book
Value shall not include any general or specific reserves on the books and
records of NBBF.
"Borrower"
means any
obligor, guarantor or surety of any Loan or any other party liable for the
performance of obligations associated with any Loan.
2
"Business Day" means any day other than a Saturday, Sunday or federal
legal holiday.
"Calculation
Date"
means October 31, 2007, which date shall be used to calculate the Purchase
Price.
"Certificate
re Other Taxes"
means a certificate signed by the chief financial officer, chief
accounting officer or other executive officer with knowledge of tax matters,
or
the general counsel, of Buyer certifying that under the applicable laws of
(a)
each relevant Foreign Jurisdiction, (b) any jurisdiction in which Buyer, its
lending or other relevant office or agents may be located, or (c) any other
jurisdiction, (i) no Other Taxes are payable by Seller or Buyer, or
if any such Other Taxes are payable, certifying the type and amount of such
taxes, the party responsible for the payment thereof, the relevant taxing
authority to which payment of such Other Taxes must be made and the timing
for
such payment as required by applicable law, and (ii) no tax forms or other
information reports are required of the Seller, or if any such forms or reports
are required, certifying the type of form, the relevant taxing authority and
the
deadline for such form or other report.
"Chartering
Authority"
means (i) with respect to a national bank, the Office of the Comptroller of
the
Currency, (ii) with respect to a federal savings association or savings bank,
the Office of Thrift Supervision, (iii) with respect to a bank or savings
institution chartered by a state, the agency of such state charged with primary
responsibility for regulating and/or closing banks or savings institutions,
as
the case may be, (iv) the Corporation in accordance with 12 U.S.C. Section
1821(c), with regard to self appointment, or (v) the appropriate federal banking
agency in accordance with 12 U.S.C. 1821(c)(9).
"Closing"
means the simultaneous delivery by Seller and Buyer of documents and funds
and
the performance of the other acts herein provided to be performed on the Loan
Sale Closing Date in order to effect the consummation of the Loan
Sale.
"Collateral"
means
any
and all collateral securing a Loan, including without limitation, any accounts
receivable, inventory, property of any kind, whether real or personal (including
but not limited to equipment and other physical assets), and any contract and
other rights and interests of a Borrower pledged pursuant to or otherwise
subject to any Collateral Document. Collateral does not include collateral
which
has been foreclosed on or before the Calculation Date and the Redemption Period,
if any, has expired on or before the Calculation Date.
"Collateral
Document"
means each deed of trust, mortgage, assignment of production, security
agreement, assignment of security interest, personal guaranty, corporate
guaranty, letter of credit, pledge agreement, collateral agreement, loan
agreement or other agreement or document, whether an original or copy or whether
similar to or different from those enumerated, securing in any manner the
performance or payment by any Borrower of its obligations or the obligations
of
any other Borrower under any Note evidencing a Loan. Collateral
Document does not include a deed of trust, mortgage, assignment of production,
security agreement, assignment of security interest, pledge agreement or
collateral agreement insofar as the collateral encumbered by such agreement
has
been foreclosed under such agreement on or before the
Calculation
Date, and the Redemption Period, if any, has expired on or before the
Calculation Date.
3
"Confidentiality
Agreement"
means the confidentiality agreement executed or assented to by Buyer
in
anticipation of gaining access to the documents comprising the Bid
Package and other documents related to the sale of the Loans.
"Contract
for Deed"
means an executory contract with a third party to convey real
property.
"Corporate
Advances"
means the payment of appraisal fees, broker opinion fees, attorney fees and
associated legal fees, foreclosure fees, trustee fees, property inspection
fees,
property preservation and operating cost fees, tax penalties, title policies,
lien search fees or any other cost that can be directly associated with the
collection and servicing of a Note.
"Corporation"
means the Federal Deposit Insurance Corporation in its corporate
capacity.
"Deconversion
Date"
means the date Loan servicing records are transferred to the system
of
records of the Buyer of Pool NBF-1-07-020, which date shall be a Business Day
not later than sixty (60) calendar days after the Loan Sale Closing
Date.
"Deficiency
Balance"
means the remaining unpaid principal balance of any Note purchased hereunder
after crediting to it the proceeds of a foreclosure sale which occurred on
or
before the Calculation Date, and for which the Redemption Period, if any,
expired on or before the Calculation Date.
"Disbursement
of Principal"
means incremental funding of loan proceeds under a Note, such as in
the
case of a revolving credit loan or a construction loan.
“▇▇▇▇▇▇▇
Money Deposit”
means the monies paid by or on behalf of Buyer to Seller prior to
Loan
Sale Closing Date in the amount and manner specified in the Bid Instructions
contained in the Bid Package.
“Failed
Bank” means
any depository institution (i) which owned a Loan on the date on which the
Chartering Authority closed such institution and (ii) for which the Corporation
has been appointed Receiver.
"Foreign
Loan" means a
Loan regarding which the Borrower or any of the Collateral concerning the Loan
is located in a country other than the United States.
"Foreign
Jurisdiction"
means any country, other than the United States, and any subdivision
or
other jurisdiction of or in such other country in which a Borrower or any
Collateral is located.
4
“Inchoate
Agreements”
means those certain loans and leases set out in Attachment “A-2”
to
this Agreement. The Inchoate Agreements are commercial non-real
estate loans and equipment leases which, as of November 1, 2007 had not been
funded by NBBF, but which, prior to November 1, 2007 either (a) have been
formalized by the execution of loan, lease or other documents in which NBBF
is
lender, lessor or secured party, or (b) have been otherwise committed to or
in
the process of being committed to by NBBF as lender, lessor, or secured
party.
"Internal
Revenue
Code" means the Internal Revenue Code of 1986 of the United States, as
it may be amended from time to time.
“Invitation
to Bid”
means the document under such title provided to bidders and potential
bidders as part of the Bid Package.
"Limited
Power of
Attorney" means the Limited Power of Attorney in the form of Attachment
“G” to this Agreement.
"Loan(s)"
means and
includes: (a) any obligation evidenced by a Note or other evidence of
indebtedness; (b) all rights, powers, liens or security interests of Seller
in
or under the Collateral Document(s); (c) any judgment founded upon a note to
the
extent attributable thereto and any lien arising therefrom; (d) any Contract
for
Deed and the real property which is subject to such Contract for Deed; (e)
any
lease and the related leased property, including, but not limited to, in the
case of the purchase of Loan Pool NBF-1-07-010, those leases described in
Attachment “I” to this Agreement; (f) all right, title and interest in and to
any Deficiency Balance; and (g) any other asset or liability of whatever kind
or
type, all as identified on the attached Schedule of Loans, including without
limitation, all rights arising therefrom or appurtenant thereto. Loan(s) do
not
include repossessed or foreclosed collateral (i) which was foreclosed on or
before the Calculation Date and (ii) for which the Redemption Period, if any,
expired on or before the Calculation Date.
"Loan
File" means (i)
all Failed Bank documents pertaining to any Loan, either copies or originals,
that are in the possession of Seller excluding the Note, renewals of the Note
and Collateral Documents and (ii) any files with respect to a Loan established
and maintained by Seller's employee(s) or contractor(s) responsible for the
management of that Loan following the closing of the Failed Bank, excluding
Seller's internal memoranda and confidential communications between Seller
and
its legal counsel. The Loan File does not include other files maintained by
other employees or agents of Seller, such as Seller's legal
counsel.
"Loan
Pool(s)" means
one (or more) of the groups of Loans identified in the Schedule of
Loans.
"Loan
Sale" means the
sale of Loans of the Failed Bank by Seller as described in the Bid
Package.
5
"Loan
Sale Closing
Date" means a date selected by Seller, which date shall not be later
than ten (10) Business Days after the Bid Award Date.
“Loan
Spreadsheets”
means information on the Loans provided to bidders and potential
bidders as part of the Bid Package.
"Mortgaged
Property"
means the land, fixtures and improvements, if any, securing any Loan sold to
Buyer under the terms and conditions of this Agreement. Mortgaged
Property does not include property repossessed or foreclosed on or before the
Calculation Date as to which the Redemption Period, if any, expired on or before
the Calculation Date.
“NBBF”
means
NetBank
Business Finance, a division of NetBank, Alpharetta, Georgia.
"Non-Foreign
Loan"
means any Loan which is not a Foreign Loan.
"Non-Performing
Loan(s)" means any Loan which is not a lease, other than a Performing
Loan.
"Note"
means each
agreement, document and instrument evidencing a Loan, including without
limitation, each promissory note, loan agreement, shared credit or participation
agreement, inter-creditor agreement, letter of credit, reimbursement agreement,
draft, bankers' acceptance, transmission system confirmation of transaction
or
other evidence of indebtedness of any kind evidencing each Loan (including
loan
histories, affidavits, general collection information, correspondence and
comments pertaining to such obligation).
"Noteholder"
means
the
holder of a Note.
"Obligations"
means all obligations and commitments of Seller relating to a Loan and arising
under and in accordance with the relevant Note(s) or Collateral Documents
relating thereto, including without limitation the commitment to make advances
of funds to or for the benefit of a Borrower.
"Other
Taxes" means
any taxes, assessments, levies, imposts, duties, deductions, fees, withholdings
or other charges of whatever nature, including interest and penalties thereon,
required to be paid to any taxing authority of or in (a) any Foreign
Jurisdiction, (b) any jurisdiction in which Buyer, its lending or other relevant
office or agents may be located under the applicable laws of such Foreign
Jurisdiction or (c) any other jurisdiction, with respect to the sale and
transfer of the Loans, the Collateral Documents or the rights in the Collateral
or the assignment and assumption of Obligations thereunder, including without
limitation any withholding taxes payable by virtue of the sale of the Loans
at a
discount from Book Value and any value-added taxes. The term “Other
Taxes” does not encompass the defined term “Taxes.”
"Participated
Loan"
means any Loan subject to a shared credit, participation or similar
inter-creditor agreement under which the Failed Bank was lead or agent financial
depository institution or otherwise managed the credit or sold participations,
or under which the Failed Bank
was
a
participating financial depository institution or purchased participations
in a
credit managed by another.
6
"Platform-related
Assets and
Liabilities" means the assets and liabilities listed on Attachment
"A-1" to this Agreement.
"Performing
Loan"
means any Loan which is not a lease, for which the last payment of principal,
interest and any escrow amounts that is required to be paid by the terms of
the
Note or Collateral Documents is less than sixty days past due (for matured
loans, less than thirty days past due) as of the Calculation Date as shown
on
the Schedule of Loans attached hereto as Attachment "A," regardless of whether
such Loan is in a Loan Pool consisting primarily of Performing Loans or
consisting primarily of Non-Performing Loans.
"Property"
means the
real or personal property securing any Loan contained in a Loan
Pool. Property does not include property repossessed or
foreclosed on or before the Calculation Date as to which the Redemption Period,
if any, expired on or before the Calculation Date.
"Purchase
Price" means
an amount equal to the sum of (i) the Bid Amount, plus (ii) any
Advances made by NBBF, the Failed Bank or Seller, plus, as regards Loans which
are not leases (iii) Disbursements of Principal made by Seller that are not
included in the Book Value, plus (iv) interest calculated on the Book
Value and at the rate payable for each Performing Loan (except those with
pre-computed interest) from the interest "paid-to date" to, but not including,
the Loan Sale Closing Date, plus, as regards the Loans, (v) a credit for any
assumption of the liability for security deposits and escrow deposits as
provided in Section 5.10, plus (vi) a credit for any net liabilities
(liabilities less assets) assumed by Buyer pursuant to Sections 5.23 and 5.24,
and plus or minus, only in the event of the purchase of Loan Pool NBF-1-07-010
(vii) any debit or credit, as applicable, with respect to the Platform-related
Assets and Liabilities as set forth in Section 5.26. No amount with
respect to unpaid interest shall be due for Non-Performing Loans.
"Purchaser
Eligibility
Certification" means the document under such title provided to bidders
and potential bidders as part of the Bid Package and executed by Buyer in
connection with the Loan Sale.
“Receiver”
means
the
Federal Deposit Insurance Corporation as Receiver of NetBank.
"Redemption
Period"
means the applicable state statutory time period, if any, during which
a foreclosed owner may buy back foreclosed real property from the foreclosure
sale purchaser. Not all states provide for a Redemption
Period. The length of a Redemption Period may vary among the states
which do provide for a Redemption Period. The law of the state in
which the real property is located is the applicable law in determining whether
there is a Redemption Period and if so, how long it is.
7
"Related
Party" means
any party related to the Borrower in the manner delineated in 26 U.S.C.A 267(b)
and the regulations promulgated thereunder, as such law and regulations may
be
amended from time to time.
"Repurchase
Percentage"
means the Repurchase Percentage indicated on Attachment "B" to this
Agreement.
"Repurchase
Price"
means, with respect to any Loan, an amount equal to the sum of (i) the Bid
Amount, adjusted to reflect changes to Book Value in accordance with Section
2.4
hereof, for the Loan Pool containing such Loan, multiplied by the Repurchase
Percentage, plus (ii) any Advances on such Loan included in the Purchase Price,
plus (iii) any interest on such Loan that is not a lease included in the
Purchase Price, minus (iv) the total of amounts received after the Calculation
Date by Buyer for such Loan, regardless of how applied, plus (v) Advances made
by Buyer, plus (vi) total Disbursements of Principal regarding such Loan which
is not a lease made by Seller that are not included in the Book Value, minus,
as
regards the Loans, (vii) any amount credited to Buyer by Seller for security
deposits and escrow deposits as provided in Section 5.10, accounts payable
and
brokerage commissions as provided in Section 5.23 and Taxes as provided in
Section 5.24 which is attributable to the repurchased Loan. The
amount to be subtracted for security deposits, escrow deposits, accounts
payable, brokerage commissions and Taxes as provided in this paragraph will
not
be subtracted in the event Buyer has actually paid such amounts on the
repurchased Loan and Buyer provides evidence satisfactory to Seller that such
amounts have been paid.
"Schedule
of Loans" means the
list of all Loans that are the subject of this transaction appended to this
Agreement as Attachment "A" and in addition, if the Buyer purchases Loan Pool
NBF-1-07-010, the list of Loans appended to this Agreement as Attachment
"A-1."
“Servicing
Agreements”
means the two Servicing Agreements described on Attachment “H” to this
Agreement.
"Settlement
Date"
means a date determined by Seller upon which final adjustments will be made
to
the Purchase Price pursuant to Section 2.4 hereof. Any Settlement Date
determined by Seller shall be a Business Day not later than one hundred eighty
(180) calendar days after the Loan Sale Closing Date.
"Significant
Environmental
Contamination" means the presence at, in or under a Mortgaged Property,
at a level or in an amount that poses a threat to human health or the
environment sufficient to prompt a regulator to require remediation under any
federal or state law, of any substance defined as a "hazardous substance" under
Section 101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601(14), and including lead-based paint and
petroleum, including crude oil or any fraction thereof that is liquid at
standard conditions of temperature and pressure.
8
“Taxes”
means
sales
taxes and personal property taxes assessed against Seller regarding the Loans,
which sales taxes and personal property taxes remain unpaid by the Seller as
of
the Calculation Date, or become due and payable after the Calculation
Date.
"Transfer
Documents"
means the endorsements and allonges to Notes, Assignment and Lost Instrument
Affidavits (if applicable), assignments, deeds and other documents of
assignment, conveyance or transfer required under the laws of any jurisdiction
within the United States to evidence the transfer to Buyer of the Loans, the
Collateral Documents and Seller’s rights with respect to the Loans and the
Collateral. Transfer Documents do not include this Agreement, the ▇▇▇▇ of Sale,
and the Assignment and Assumption of Interests and Obligations.
"Uniform
Commercial
Code" means the uniform law governing commercial transactions as
adopted by the State of New York.
9
Article
II
Purchase
and Sale of Loans
NBBF
will
not enter into any new loan or lease beginning November 1,
2007. Beginning November 1, 2007, NBBF will refer to the Buyer all
inquiries it receives from potential borrowers or lessees regarding new loans
or
leases. It will be the Buyer’s decision as to whether to enter into a
loan or lease with the inquirer and whether to fund such loan or
lease.
NBBF
will
assign the Inchoate Agreements to Buyer by an assignment in the form of
Attachment "J" to this Agreement. The Buyer has no right to call upon
Seller to repurchase the Inchoate Agreements under the provisions of Article
VII
of the Agreement.
10
(a)
On or before the Settlement Date,
Seller shall provide Buyer with a statement(s) setting forth adjustments to
the
Purchase Price that Buyer or Seller discovers reflecting (1) any changes in
the
Book Value (i) because of miscalculations, misapplied payments, unapplied
payments, unrecorded Disbursements of Principal disbursed on or before the
Calculation Date, or other accounting errors; or (ii) resulting from a final
court decree, unappealable regulatory enforcement order or other similar action
of a legal or regulatory nature effective on or before the Calculation Date,
or
(iii) resulting from a foreclosure sale which occurred on or before the
Calculation Date for which the Redemption Period, if any, expired on or before
the Calculation Date; and (2) any unreimbursed Advances or Disbursements of
Principal disbursed after the Calculation Date that were not previously included
in the Purchase Price. No adjustment to Purchase Price will be made for (a)
any
changes resulting from any calculation or adjustment of interest on any Loan
as
provided in Section 6.4 hereof, or (b) any payment of Taxes as provided in
Section 5.24. Any monies due Buyer or Seller as a result of any adjustments
made
pursuant to Section 2.4(a)(1) hereof will be calculated by multiplying the
resulting net change in Book Value by the Bid Percentage. Any monies due Seller
as a result of any adjustments made pursuant to Section 2.4(a)(2) will be equal
to 100% of the aggregate amount of payments not previously included in the
Purchase Price. The total aggregate amount owed to Seller shall be subtracted
from the total aggregate amount owed to Buyer. If the resulting amount is a
positive number, Seller shall pay such amount to Buyer, and if the resulting
amount is a negative number, Buyer shall pay such amount to Seller as if such
number were a positive number. Any monies due Buyer or Seller will be paid
no
later than ten (10) Business Days after the Settlement Date. Buyer shall adjust
its servicing records to reflect any changes to the unpaid principal balance
of
any Loan made pursuant to this Section 2.4(a).
(b)
With respect to any Loan, Seller
reserves the right to permit or require offsets against deposit accounts of
the
Failed Bank. If allowed by Seller, such offsets will be retroactive to the
date
such Failed Bank closed. At such time as an offset is effected, Seller will
give
notice of such to Buyer and pay Buyer the amount of the offset on a
dollar-for-dollar basis and Buyer shall credit such amount to the Loan according
to the terms and conditions of the applicable Note(s) as of Bank Closing
Date.
expired
on or before the Calculation Date; nor shall Buyer acquire any interest in
or to
any performance or completion bond filed with any governmental entity for the
purpose of ensuring that improvements constructed or to be constructed on such
property are completed in accordance with any governmental regulation(s) or
building requirement(s) applicable to the proposed or completed
improvement.
11
12
Article
III
Transfer
of Loan(s), Collateral Documents and Servicing
(a) At
Closing, Buyer shall deliver to Seller:
1. Two
originals of the Assignment and Assumption of Interests and Obligations, in
the
form of Attachment "D" to this Agreement, executed by
Buyer.
2. A
corporate resolution certified by Buyer's corporate secretary or,
if
Buyer
is not a corporation, other evidence satisfactory to Seller as to Buyer's
authority: (i) to purchase the Loans and assume the Obligations thereunder,
and
(ii) to execute and deliver this Agreement and all related instruments required
to consummate the transactions contemplated hereby and to carry out all of
its
obligations hereunder (including a certificate of incumbency of any person
who
executes any document on behalf of Buyer).
3. Two
originals of this Agreement executed by Buyer.
|
|
4.
|
Two
originals of the Assignment of Leases, in the form of Attachment
“I” to
this Agreement, executed by Buyer.
|
|
|
5.
|
Two
originals of an Assignment of Servicing Agreements as described in
Section
5.25 of this Agreement, executed by
Buyer.
|
6. Other
documents as Seller may reasonably require as evidence of
Buyer's
good standing, existence or authority.
(b) At
Closing, Seller shall deliver to Buyer:
1. A
▇▇▇▇ of Sale transferring all of Seller's right, title and interest
in
|
|
and
to the Loans to Buyer, in the form of Attachment "C" to this
Agreement, executed by Seller.
|
2. Two
originals of the Assignment and Assumption of Interests and Obligations, in
the
form of Attachment "D" to this Agreement, executed by
Seller.
3. Two
originals of this Agreement executed by Seller.
|
|
4.
|
Two
originals of the Assignment of Leases, in the form of Attachment
“I” to
this Agreement, executed by Seller.
|
13
|
|
5.
|
Two
originals of an Assignment of Servicing Agreements as described in
Section
5.25 of this Agreement, executed by
Seller.
|
6. Such
Transfer Documents executed by Seller as Seller elects to deliver at
Closing.
(c) Within
thirty days after the Loan Sale Closing Date, Buyer shall deliver the
Certificate re Other Taxes to Seller, if applicable.
(d) Within
a reasonable time after the Loan Sale Closing Date, Seller shall deliver to
Buyer the Note, the Loan File(s) and Collateral Document(s) pertaining to the
Loan(s) sold.
(e) After
Closing, Seller, in Seller’s sole discretion, may elect to grant a Limited Power
of Attorney to selected Buyer employees. If Seller elects to grant
such a Limited Power of Attorney, Seller will provide it to Buyer within a
reasonable time after the Loan Sale Closing Date. If Buyer is granted
such a Limited Power of Attorney, Buyer, at Buyer’s expense, will prepare and
execute on behalf of Seller, within a reasonable time after the Loan Sale
Closing Date, all Transfer Documents not delivered by Seller to Buyer at
Closing. All Transfer Documents prepared by Buyer shall be in
appropriate form suitable for filing or recording (if applicable) in the
relevant jurisdiction and otherwise subject to the limitations set forth herein,
and Buyer shall be solely responsible for the preparation, contents and form
of
such documents. Buyer hereby releases Seller from any loss or damage
incurred by Buyer due to the contents and form of any documents prepared by
Buyer and shall indemnify and hold Seller harmless for any action or cause
of
action by any person, including Buyer, arising out of the contents or form
of
the Transfer Documents, including without limitation, any claim relating to
the
adequacy or inadequacy of any of such documents or instruments for the purposes
thereof.
The
form
which Buyer shall use for endorsing promissory notes or preparing allonges
to
promissory notes is as follows:
Pay
to
the order of
Without
Recourse
FEDERAL
DEPOSIT INSURANCE CORPORATION AS RECEIVER OF NETBANK
By:
Name:
Title: Attorney-in-Fact
14
(f) In
the event Seller elects not to provide Buyer with a Limited Power of Attorney
in
accordance with Section 3.1(e), then all Transfer Documents not delivered by
Seller to Buyer at Closing shall be prepared and executed by one of the
following methods, at Seller’s option:
1. Seller,
at Seller’s expense, will prepare and execute all endorsements and allonges to
Notes or Assignment and Lost Instrument Affidavits (if applicable) not delivered
by Seller to Buyer at Closing and provide them to Buyer within a reasonable
time
after the Loan Sale Closing Date. Buyer, at Buyer’s expense, will
prepare all other Transfer Documents not delivered by Seller to Buyer at Closing
and shall deliver such documents to Seller for execution within a reasonable
time after the Loan Sale Closing Date. All Transfer Documents
prepared by Buyer shall be subject to the terms and conditions for Transfer
Documents specified in Section 3.1(e) above. If any Transfer Document
delivered by Buyer to Seller for execution is unacceptable to Seller for any
reason whatsoever, Seller may return such document to Buyer along with an
explanation as to why the document is unacceptable to Seller. When
requesting execution of any such document, Buyer shall furnish Seller with
the
Loan Pool and the Loan numbers set forth on the Schedule of Loans, and a copy
of
the Note(s), a copy of the Collateral Document(s) or other document(s) to be
transferred, and copies of any previous assignments of the applicable Collateral
Document or other document; or
2. Seller,
at Seller’s expense, will prepare and execute all Transfer Documents not
delivered by Seller to Buyer at Closing and provide them to Buyer within a
reasonable time after the Loan Sale Closing Date. Seller shall
furnish all such documents to Buyer in appropriate form suitable for filing
or
recording (if applicable) in the relevant jurisdiction and otherwise subject
to
the limitations set forth herein.
(g) As
to Foreign Loans, Buyer, at its own expense, must retain counsel who are
licensed in the Foreign Jurisdiction(s) involved with the Foreign
Loans. Such foreign counsel must draft the documents necessary to
assign the Foreign Loans to Buyer. Documents presented to Seller to
assign Foreign Loans to Buyer must be accompanied by a letter on the foreign
counsel's letterhead, signed by the foreign counsel preparing those documents,
certifying that those documents conform to all the laws of the Foreign
Jurisdiction. Each such document and instrument shall be delivered to
Seller in the English language, provided, however, that any document required
for its purposes to be executed by Seller in a language other than the English
language shall be delivered to Seller in such language, accompanied by a
translation thereof in the
English language, certified as to its accuracy by an executive officer or
general counsel of Buyer and, if such executive officer or general counsel
shall
not be fluently bilingual, by the translator thereof.
15
(h) Nothing
contained herein or elsewhere in this Agreement shall require Seller to make
any
agreement, representation or warranty or provide any indemnity in any such
document or instrument or otherwise, nor is Seller obligated to obtain any
consents or approval to the sale or transfer of (i) the Loans or the related
servicing rights, if any, (ii) the Servicing Agreements described in Attachment
“H,” or (iii) the assumption by the Buyer of the Obligations or any of the other
obligations described in this Agreement.
(i) Seller
agrees to execute any additional documents required by applicable law or
necessary to effectively transfer and assign any and all Loans to
Buyer. Seller shall have no obligation to provide, review or execute
any such additional documents unless the same shall have been requested of
Seller within 365 calendar days of the Loan Sale Closing Date.
In
the
event a successful bidder acquires Loan Pool NBF-1-07-020, Seller will provide
interim servicing of the Loans on Buyer’s behalf from the Loan Sale Closing
Date through the Deconversion Date. The interim servicing provided by
Seller will conform to industry standards. Seller’s performance
of this interim servicing shall cease on the Deconversion Date.
Seller
will appoint Buyer as its subservicer, and Buyer will serve as Seller’s
subservicer during the interim servicing period from Loan Sale Closing Date
through the Deconversion Date. On the Loan Sale Closing Date Seller
will make available to Buyer or will provide Buyer with the NBBF system(s)
used
to service Loans. Seller will pay Buyer to subservice the Loans only
for the thirty (30) calendar-day period beginning on the Loan Sale Closing
Date. Seller will not pay Buyer for subservicing beginning the
thirty-first (31st) day from
the Loan
Sale Closing Date (the Loan
Sale
Closing Date being the first day of the thirty-one days) through the
Deconversion Date. Seller will pay Buyer for subservicing for the
thirty (30)
16
calendar
period beginning on the Loan Sale Closing Date on the following
basis: Seller will reimburse Buyer for expenses incurred by Buyer in
connection with Buyer’s subservicing duties which the Seller reasonably
determines are actual, reasonable and necessary, including expenses of
photocopying, postage and express mail, data processing and employee
services (based upon the number of hours spent performing subservicing duties)
but not including overhead or other administrative expenses related to such
employee services. All of such subservicing expenses submitted to
Seller for reimbursement must be documented by evidence, satisfactory to Seller,
supporting the basis for such expenses. Promptly upon request by
Seller, Buyer shall supply Seller with any additional evidence that Seller
may
request.
From
and
after the Loan Sale Closing Date, all rights, obligations, liabilities and
responsibilities with respect to the servicing of the Loans shall pass to the
Buyer, and Seller shall be discharged from all liability therefor, including
any
liability arising from any interim servicing provided by Seller pursuant to
this
Section 3.3.
17
Article
IV
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:
18
Article
V
Covenants,
Duties and Obligations of Buyer
19
Buyer
shall be responsible for submitting all information returns required under
applicable laws of any Foreign Jurisdiction, to the extent such are required
to
be filed by Buyer or Seller under such laws, relating to the Loans, for the
calendar or tax year in which the Closing occurs and thereafter.
comply
with the provisions of this section within twenty (20) Business Days after
the
Loan Sale Closing Date, Seller may, at its option, dismiss with or without
prejudice or withdraw from, any such pending litigation.
20
In
the
event that Buyer shall be unable, as a matter of applicable law, to cause Seller
to be replaced by Buyer as party-in-interest in any such litigation, Buyer
shall
provide to Seller's Regional Counsel at the address specified above within
twenty (20) Business Days of the Loan Sale Closing Date a legal opinion of
Buyer's legal counsel, qualified in the relevant jurisdiction, to such effect
and stating the reasons for such failure. In such event, (i) Buyer
shall cause its attorney to conduct such litigation at Buyer's sole cost and
expense; (ii) Buyer shall cause the removal of Seller and substitution of Buyer
as party-in-interest in such litigation at the earliest time possible under
applicable law; (iii) Buyer shall use its best efforts to cause such litigation
to be resolved by judgment or settlement in as reasonably efficient a manner
as
practical; (iv) Seller shall cooperate with Buyer and Buyer's attorney as
reasonably required in Seller's sole judgment to bring such litigation or any
settlement relating thereto to a reasonable and prompt conclusion; (v) no
settlement shall be agreed upon by Buyer or its agents or counsel without the
express prior written consent of Seller, unless such settlement includes an
irrevocable and complete waiver and release of any and all potential claims
against Seller in relation to such litigation or the subject Loans or
Obligations by any person, including without limitation Buyer and any Borrower,
and any and all losses, liabilities, claims, causes of action, damages, demands,
taxes, fees, costs and expenses relating thereto are expressly agreed, duly,
validly and enforceably, to be paid by Buyer without recourse of any kind to
Seller; and (vi) Buyer shall pay all costs and expenses of Seller and Seller's
counsel, if any, engaged in connection with such litigation as provided for
in
the next succeeding sentence.
Buyer
agrees to reimburse Seller, upon demand, for Seller's legal expenses in such
litigation. Buyer shall pay all of the costs and expenses incurred by it in
connection with the actions provided for in this Section 5.7, including, without
limitation, all legal fees and expenses and court costs, and agrees to pay
or
reimburse Seller, upon demand, for Seller's legal expenses in connection with
such litigation incurred on or after the Loan Sale Closing Date, including
the
dismissal thereof or withdrawal therefrom.
such
Loan
and Buyer further agrees to reimburse Seller for any cost or expense incurred
by
Seller as a result of Buyer's failure to file an Affidavit and Assignment of
Claim or similar forms as required herein.
21
22
(a) Allow
Seller the continuing right to use, inspect and make extracts from or copies
of
any such documents or records upon Seller's reasonable notice to
Buyer.
(b) Allow
Seller the possession, custody and use of original documents for any lawful
purpose and upon reasonable terms and conditions.
(c) Give
reasonable notice to Seller of Buyer's intention to destroy or dispose of any
documents or files and to allow Seller, at its own expense, to recover the
same
from Buyer.
23
(b) Buyer
agrees that it will not renew, extend, renegotiate, compromise, settle or
release any Note or Loan or any right of Buyer founded upon or growing out
of
this Agreement, except upon payment in full thereof, unless all Borrowers on
said Note or Loan shall first release and discharge the Failed Bank(s) and
Seller and its agents and assigns (the "Released Parties") from all claims,
demands and causes of action which any such Borrower may have against
any such Released Party arising from or growing out of any act or omission
occurring prior to the date of such release. If Buyer fails
to obtain such release, Buyer agrees to protect,
save and hold Seller harmless from any expense or damage Seller suffers that
might have been prevented had Buyer obtained the release.
24
5.23. Accounts
Payable/Brokerage Commissions. Buyer shall assume and be
solely responsible for (i) all accounts payable by NBBF to suppliers of
equipment as reflected in account number 207110 of NBBF's books and records,
and
(ii) all liabilities reflected in account number 290010 of NBBF's books and
records which liabilities are primarily brokerage commissions payable by NBBF
to
equipment lease brokers. Buyer shall be given a credit against the
Purchase Price for the net liabilities assumed pursuant to this section as
such
net liabilities are calculated by netting assets against liabilities as they
appear on the books and records of NBBF in account numbers 207110 and 290010
as
of the Calculation Date.
25
5.24. Payment
of Taxes. Buyer shall be responsible for payment of
all Taxes. Buyer shall be given a credit against the Purchase Price
for the net liabilities for Taxes assumed pursuant to this section as such
Taxes
are calculated by netting assets against liabilities as they appear on the
books
and records of NBBF in account numbers 207100 and 207105 as of the Calculation
Date.
5.25. Assignment
of Servicing Agreements. Buyer will accept assignment of
the Servicing Agreements, thereby becoming the servicer under the Servicing
Agreements for loans serviced for third parties. Buyer agrees to
assume all obligations of the Servicer under the Servicing
Agreements. Seller will assign the Servicing Agreements to Buyer at
no charge.
5.26. Purchase
of Platform-related Assets and Liabilities. The Buyer
of Loan Pool NBF-1-07-010 will purchase the Platform-related Assets and
Liabilities from the Seller. If the net balance of the
Platform-related Assets and Liabilities as such items appear on the books and
records of NBBF as of the Calculation Date is positive, the Buyer shall purchase
the Platform-related Assets and Liabilities at their net Book Value, which
shall
be in addition to the Purchase Price, or if the net balance of the
Platform-related Assets and Liabilities is negative, Buyer shall be given a
credit against the Purchase Price for the Platform-related Assets and
Liabilities assumed pursuant to this section.
26
Article
VI
Loans
Sold “As Is” and Without Recourse
27
28
Article
VII
Repurchase
by Seller at Buyer's Option
(a) The
Borrower had been discharged in a no asset bankruptcy proceeding and no
collateral exists out of which the Loan may be satisfied and all guarantors
or
sureties of the Note, if any, or the obligations contained therein, have
similarly been discharged in no asset bankruptcies.
(b) A
court of competent jurisdiction had entered a final judgment (other than a
bankruptcy decree or judicial foreclosure order) holding that neither the
Borrower nor any guarantors or sureties owe an enforceable obligation to pay
the
holder of the Note or its assignee(s).
(c) The
Failed Bank or Seller had executed and delivered to the Borrower a release
of
liability from all obligations under the Note.
(d) A
title defect exists in connection with the property which is the subject of
a
Contract for Deed and which title defect requires a prior order or judgment
of a
court to enable Buyer to convey title to such property in accordance with the
terms and conditions set forth in the Contract for Deed.
(e) Seller
is not the owner of the Loan (or, in the case of a participation interest in
a
Loan, Seller is not the owner of the pro rata interest in such
participation interest set forth on the attached Schedule of
Loans).
(f) The
Mortgaged Property securing any Loan sold hereunder has Significant
Environmental Contamination. Buyer's recourse with respect to this Section
7.1(f) shall be conditioned upon: (i) the presence of Significant Environmental
Contamination not being disclosed in the Loan, Loan File or other material
made
available by Seller to Buyer prior to submission of a Bid; (ii) such Loan having
a Book Value greater than $250,000.00 as of the Loan Sale Closing Date; and,
(iii) Buyer delivering, along with the notice required by Section 7.4 hereof,
the following, each of which must be satisfactory in form and substance to
Seller in its sole discretion:
29
1. A
Phase I environmental assessment, from a qualified and reputable firm, of the
Mortgaged Property securing the Loan; and,
2. A
Phase II environmental assessment or lead-based paint survey of such Mortgaged
Property from a qualified and reputable firm, which assessment shall confirm
(i)
the existence of Significant Environmental Contamination on such Mortgaged
Property and (ii) that the regulator is likely to require such remediation;
and,
3. Buyer
shall have submitted a written certification of Buyer under penalty of perjury
that no action has been taken by or on behalf of Buyer (i) to initiate
foreclosure proceedings or (ii) to accept a deed-in-lieu-of-foreclosure in
connection with such Loan.
(g) The
Failed Bank, its officers, directors or employees fraudulently caused the
Borrower to receive less than all of the proceeds and benefits of a Note.
Buyer's recourse with respect to this Section 7.1(g) shall be conditioned upon
Buyer delivering, along with the notice required by Section 7.4 hereof, written
evidence of such fraud, which evidence must be satisfactory in form and
substance to Seller in its sole discretion.
30
31
Article
VIII
Notices
SELLER: Manager,
Asset Claims Administration
FDIC
Asset Claims
Administration
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇, (▇▇.
F-3054)
▇▇▇▇▇▇▇▇▇▇,
▇.▇.
▇▇▇▇▇-▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Senior
Counsel
FDIC
Legal Division
Litigation
Branch, Receivership Section
Special
Issues ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇ E-7056)
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
BUYER: LEAF
Funding, LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: Mr.
Crit ▇▇▇▇▇▇, CEO
Telephone
Number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile
Number:
▇▇▇-▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇▇▇@▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇
SELLER: Federal
Deposit Insurance Corporation
Franchise
and Asset Marketing
Branch
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
32
Federal
Deposit Insurance
Corporation
Regional
Counsel, Litigation
Branch
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
33
Forfeiture
of ▇▇▇▇▇▇▇ Money and Other Remedies
9.1 Failure
to Close. If for any reason, without fault of Seller, Buyer
fails to consummate a purchase on the Loan Sale Closing Date, upon the terms
and
conditions set forth in this Agreement, Seller’s liquidated damages shall be the
▇▇▇▇▇▇▇ Money Deposit and all other funds deposited with
Seller. Buyer and Seller agree that the failure or refusal of Seller
to alter or modify in any way, the terms or conditions of this Agreement or
any
other documents contained in the Bid Instructions shall not constitute fault
on
the part of Seller. Nothing contained herein is intended to, nor
shall it be construed to limit, in any way the right of Seller to seek any
other
right, remedy, relief or damages provided by law or equity. Buyer
shall not be liable for any of the foregoing damages if Buyer is forced to
withdraw its Bid after award as the result of a supervisory directive given
by
the FDIC or other federal or state financial regulatory agency, provided that
Seller shall be satisfied that such supervisory directive is legally
effective. In such event, Seller shall refund the ▇▇▇▇▇▇▇ Money
Deposit and any other funds deposited with Seller.
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Article
X
Miscellaneous
Provisions
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.
10.8. Controlling
Agreement. Seller and Buyer hereby acknowledge and
agree that this Agreement shall in all instances be the controlling document
with respect to the terms of the sale and transfer of the Loans, Collateral
Documents and Collateral, and the assignment and assumption
of all obligations thereunder. In the event of a conflict between the terms
of
this Agreement and the terms of any other document or instrument executed in
connection herewith and with the transactions contemplated hereby, including,
without limitation, any translation into a foreign language of this Agreement,
any Collateral Document, or any other document or instrument executed in
connection herewith which is prepared for notarization, filing or any other
purpose, the terms of this Agreement shall control, and furthermore, the terms
of this Agreement shall in no way be or be deemed to be amended, modified or
otherwise affected in any manner by the terms of such other document or
instrument.
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10.12. Incorporation
by Reference. The Bid Package shall be considered part of
this Agreement as if fully set forth herein.
BUYER: SELLER
FEDERAL DEPOSIT INSURANCE
LEAF
FUNDING,
LLC CORPORATION
AS RECEIVER OF
NETBANK
By: By:
Name: Name:
Title: Title: Attorney-in-Fact
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