Common use of Excluded Loans Clause in Contracts

Excluded Loans. The Parties agree that Seller is not selling, assigning, transferring, conveying or delivering to Buyer, and the acquired Loan Portfolio shall not include (collectively, the “Excluded Loans”), (a) Loans which are 60 days or more past due as of the Closing Date and any other loans held by the same or affiliated Obligor or guarantor; (b) Loans made to any entity where any Affiliate of Buyer is an officer, director or manager of the borrowing entity; (c) Loans that constitute lines of credit; (d) Loans for which Seller does not have a perfected first priority security interest in the collateral (except for second loans to the same Obligor which, when the principal balance of the second loan is added to the amount of the first loan, has an aggregate loan to value ratio (“LTV”) of less than 80% at the time of Closing); (e) Loans for which during the twelve months prior to the Closing Date Seller has granted the Obligor an extension, deferral or modification not in accordance with Seller’s then existing policies and procedures; (f) Except as set forth on Schedule 2.1.2(f)(i) hereto, loans with a LTV of greater than 80% of the current market value for such loan at the time of Closing, based upon the methodology and accounting principles employed in preparing Schedule 2.1.2(f)(ii) hereto; provided that Buyer and Seller shall execute a joint participation agreement with respect to each such loan set forth on Schedule 2.1.2(f)(i) hereto pursuant to which Buyer shall be entitled to an 80% senior participating percentage interest and Seller shall be entitled to a 20% junior participating percentage interest, each such joint participation agreement to be in the form of Exhibit B hereto; (g) Loans relating to which there is pending litigation against either Seller or its agents; (h) Loans for which the Obligor has filed bankruptcy or is the debtor in a voluntary or involuntary bankruptcy proceeding, or is the subject of a comparable receivership or insolvency proceeding prior to the Closing Date; (i) Loans with corporate entities which were not duly incorporated at the time of origination; (j) Loans with respect to which any Obligor is, to the Knowledge of Seller, asserting as of the Closing Date a right of rescission, setoff, counterclaim or defense; (k) Loans for which the (i) original copies of the Loan Agreement, note, security agreement or, if applicable, guaranty or (ii) original filed UCC-1 or certified filed UCC-1, or other proof of UCC filing and evidence of medallion ownership from the applicable regulatory authority are not available, except in the event that Seller does not have, or is unable to locate, the original promissory note(s) with respect to any Loan Agreement, Seller may deliver to Buyer on the Closing Date, for each such missing original promissory note, either (a) the lost note affidavit or equivalent received by Seller from the transferor with respect thereto, or (b) a separate lost note affidavit prepared and executed by Seller (in such form as Seller may reasonably deem appropriate, including a statement to the effect that Seller has been unable to locate, after the exercise of reasonable diligence, the applicable original promissory note, and without any further representation or recourse to Seller); provided, however, that the principal amount of such missing original promissory notes (including promissory notes for loans originated between the date hereof and the Closing Date) for which Seller delivers to Buyer the items described in (a) and (b) above shall not, in the aggregate, exceed $500,000; (l) Any loan which, at the time of origination of such loan, if the Obligor for such loan was an individual, such individual failed to furnish documentation to the applicable taxi commission or regulatory authority evidencing United States citizenship or status as a resident alien with a “Green Card”, to provide a social security card, a drivers license or otherwise failed to comply with all requirements of the applicable taxi commission or regulatory authority’s rules and regulations at the time of the issuance of the taxi license or medallion to such Obligor by such taxi commission or regulatory authority; provided that the issuance by the applicable taxi commission or regulatory authority of the taxi license or medallion to such individual shall be deemed conclusive proof that such individual complied with the applicable taxi commission’s or regulatory authority’s requirements; (m) Any loan originated by Seller for any purpose other than the financing of the applicable Obligor’s medallion, and such loan was made other than in the ordinary course of Seller’s business; (n) Any loan for which promissory notes, collateral security agreements, guaranties, UCC-1 filings and evidence of ownership of a taxi medallion from the applicable regulatory authority pertaining to such loan were not fully and properly executed by the parties thereto; (o) Any loan which, as of the date hereof, the name of the original Obligor of such loan appeared on the Specially Designated Nationals List of the Office of Foreign Assets Control of the United States Department of the Treasury; (p) Any loan which, as of the Closing Date, carried an interest rate below the greater of (1) the market interest rate and (2) the prime rate of interest; provided, however, that any such loan shall constitute an “Excluded Loan” only to the extent that (X) the principal value of all loans which, as of the Closing Date, carried an interest rate below the greater of clauses (1) and (2) above, exceed $2,000,000 in the aggregate and (Y) such loan has a maturity date of greater than twelve (12) months from the date hereof; and (q) Any loan for which the Obligor for such loan (1) is not currently the subject of a judgment in favor of Seller and (2) did not have its related medallion, the Collateral for such loan, foreclosed (or subject to foreclosure).