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EXHIBIT 10(j)
MASTER PARTICIPATION AGREEMENT
MASTER PARTICIPATION AGREEMENT (this "Agreement") dated as of
May 12, 2000, among (the "Bank"), CHASE PREFERRED CAPITAL CORPORATION (the
"Participant") and CHASE MANHATTAN MORTGAGE CORPORATION (the "Servicer").
The Bank wishes to grant to the Participant, and the Participant
wishes to acquire and assume from the Bank, on a servicing released basis,
without recourse to the Bank, a 100% participation in (inter alia) the
manufactured housing loans listed on Annex 1 hereto (the "MHL Assets"), which
MHL Assets will continue to be serviced by the Servicer pursuant to the
Servicing Agreement.
The Participation (as hereinafter defined) is intended by the
parties to be (i) a transfer of all right, title and interest of the Bank in and
to the MHL Assets other than legal title thereto (which is intended to remain
with the Bank), and (ii) treated as a sale (and not as a secured borrowing) for
accounting and tax purposes.
Accordingly, the parties hereto agree as follows:
SECTION 1. Definitions. As used herein:
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Bank" has the meaning assigned to such term in the first
paragraph of this Agreement.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Calculation Agent" means the Person appointed by the
Participant from time to time to determine the Federal Funds Rate.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to
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exercise voting power, by contract or otherwise. "Controlling" and "Controlled"
have meanings correlative thereto.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" has the meaning assigned to such term in
Section 2.03.
"Federal Funds Rate" means, for any day, the rate published for
such day in "Statistical Release H.15(519), Selected Interest Rates"
("H.15(519)"), or in the daily internet update of H.15(519) at
xxxx://xxx.xxx.xxx.xxx.xx/xxxxxxxx/x00/xxxxxx ("H.15 Daily Update"), in each
case, under the heading "Federal funds (effective)"; provided, however, that:
(A) the Calculation Agent may, in lieu of the publications
referred to above, obtain the Federal Funds Rate from any recognized
service that regularly displays the daily Federal funds (effective) rate
published in H.15(519);
(B) if the above rate is not published in H.15(519), H.15 Daily
Update or another service selected by the Calculation Agent by 3:00 p.m.
New York City time on any day, the Federal Funds Rate for such day shall
be the rate determined by the Calculation Agent to be the simple average
of the rates for the last transaction in overnight Federal funds
arranged as of 9:00 a.m. New York City time on such day by three leading
brokers of Federal funds transactions in New York City selected by the
Calculation Agent; and
(C) if on any day fewer than three brokers selected by the
Calculation Agent are quoting as mentioned in (B) above, the Federal
Funds Rate for such day shall be the Federal Funds Rate in effect on the
previous day.
"Governmental Authority" means the government of the United
States of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"H.15(519)" has the meaning assigned to such term in the
definition of "Federal Funds Rate".
"H.15 Daily Update" has the meaning assigned to such term in the
definition of "Federal Funds Rate".
"Indemnitee" has the meaning assigned to such term in Section
5.03(b).
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"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Material Adverse Effect" means, as to any Person, a material
adverse effect on (a) the business, assets, operations or condition, financial
or otherwise, of such Person, (b) the ability of such Person to perform any of
its material obligations under this Agreement, or (c) the material rights of or
material benefits available to such Person under this Agreement.
"MHL Asset" has the meaning assigned to such term in the second
paragraph of this Agreement.
"MHL Borrower" means any Person obligated in respect of an MHL
Asset.
"MHL Document" means any instrument, document or agreement
relating to any MHL Asset.
"Participant" has the meaning assigned to such term in the first
paragraph of this Agreement.
"Participation" has the meaning assigned to such term in Section
2.01.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Purchase Price" has the meaning assigned to such term in
Section 2.03.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Servicer" has the meaning assigned to such term in the first
paragraph of this Agreement.
"Servicing Agreement" means the Amended and Restated Servicing
Agreement, dated as of July 2, 1998, between the Bank and the Servicer.
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SECTION 2. The Participation.
2.01. The Participation.
(a) Grant. As of the Effective Date, the Bank hereby grants to
the Participant, and the Participant hereby acquires and assumes, a 100%
participation (the "Participation") in all of the Bank's right, title and
interest in and to the MHL Assets on a servicing released basis, including,
without limitation, (i) interest and principal due the Bank on or with respect
to the MHL Assets after the Effective Date, (ii) the proceeds of any title,
hazard or other insurance policy related to the MHL Assets, (iii) all
agreements, documents and instruments evidencing, representing, arising from or
existing in respect of, relating to, securing or otherwise supporting the
payment of the MHL Assets (including, without limitation, the Servicing
Agreement), (iv) foreclosure rights with respect to the MHL Assets, (v) all
rights granted to the Bank under the Servicing Agreement in respect of the MHL
Assets, and (vi) the proceeds of any of the foregoing. Annex 1 hereto sets forth
certain information with respect to the MHL Assets as of the Effective Date.
(b) Servicing Agreement. The Participant hereby engages the
Servicer as its agent with respect to the servicing of the MHL Assets and agrees
that the Servicer shall discharge its obligations as the agent of the
Participant by continuing to perform its servicing obligations with respect to
such assets under the Servicing Agreement. The Servicer, the Bank and the
Participant further acknowledge and agree that, as holder of the legal title to
the MHL Assets, the Bank will continue to be party to the Servicing Agreement
and to perform its obligations thereunder. Notwithstanding the foregoing, the
Servicer and the Bank each hereby acknowledge and agree that, as the beneficial
owner of the MHL Assets, the Participant shall have the right, as its option, to
direct the Bank and the Servicer in the performance of their respective rights
and obligations thereunder in respect of the MHL Assets and, without limiting
the foregoing, shall have the right to direct the Servicer, pursuant to the
Servicing Agreement, to foreclose on any MHL Assets in the name and on behalf of
the Participant.
2.02. Evidence of Participation. The Bank will maintain records
of all payments received from the Participant and all payments made by the Bank
to the Participant hereunder. The Bank will furnish an accounting to the
Participant as promptly as practicable following the Participant's request
therefor.
2.03. Payments by Participant. The Participant hereby agrees to
pay to the Bank (without reduction for or on account of any set-off,
counterclaim or other right against the Bank) $ (the "Purchase
Price"), which is the fair value of the MHL Assets, such
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Purchase Price to be payable on May 12, 2000 (the "Effective Date"). Upon
receipt by the Bank of such Purchase Price in full, the Participation shall
become effective.
2.04. Payments by Bank. Subject to Section 2.03, the Bank will
promptly pay to the Participant, in accordance with Section 2.05(a), all amounts
received and applied by the Bank in payment of principal of or interest on, and
all other amounts in respect of, each MHL Asset.
2.05. Payments Generally.
(a) Payments by the Bank. All payments by the Bank to the
Participant shall be made by transfer of immediately available funds, without
set-off or counterclaim, to the account or the address which the Participant
specifies to the Bank from time to time. The Bank shall make at least one such
wire transfer each day in which the Bank receives any such payments, and shall
transfer all such payments on the same day they are received. All payments
hereunder shall be made in Dollars.
(b) Failure to Make Payments. In the event that the Bank fails
to pay any amount (including, to the extent permitted by applicable law,
interest) payable by it to the Participant hereunder when due, the Bank will pay
to the Participant, upon demand, interest on the amount of such payment, for the
period from and including the date on which such amount became due to but
excluding the date the same is paid in full, at a rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to the Federal
Funds Rate.
2.06. Delivery of MHL Documents. On or prior to the Effective
Date, the Bank shall ensure that the Servicer is in possession of all MHL
Documents. The Servicer agrees to hold such MHL Documents on behalf of the
Participant for disposition in accordance with the terms of this Agreement and
the Servicing Agreement.
2.07. Servicer Consent and Representation. The Servicer hereby
acknowledges and consents to the Participation and all transactions related
thereto, including, without limitation, the assignment to the Participant of all
rights of the Bank under the Servicing Agreement. The Servicer represents and
warrants to the Participant that attached as Annex 2 hereto is a true and
correct copy of the Servicing Agreement, which has not been amended except as
set forth on Annex 2.
SECTION 3. Bank Undertakings and Representations.
3.01. Loan Documents; Information. To the extent requested by
the Participant and subject to Section 4.03, the Bank will furnish to the
Participant copies of all MHL
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Documents. The Bank represents and warrants to the Participant that attached as
Annex 2 hereto is a true and correct copy of the Servicing Agreement, which has
not been amended except as set forth on Annex 2.
3.02. Nonrecourse Participation. Notwithstanding anything herein
to the contrary, the Participant agrees that it will look solely to the
applicable MHL Borrower and applicable MHL Asset for payment of sums due under
each MHL Document and that the Bank shall not be personally liable for such
payments; provided, however, that the Bank shall indemnify the Participant
against, and reimburse the Participant upon demand for, any loss, liability,
claim or expense (including, without limitation, reasonable fees and
disbursements of counsel) incurred by the Participant as a result of (a) the
Bank's gross negligence or willful misconduct with respect to any aspect of the
Participation, (b) any representation or warranty made or deemed to be made by
the Bank to the Participant under this Agreement being materially false as of
the date made or deemed made, as the case may be, or (c) the Bank's failure to
perform its obligations under Section 2.04 and Section 2.05.
3.03. Amendments, Waivers, Etc. The Bank shall not (without the
Participant's consent) give or withhold its agreement to any amendments of the
MHL Documents or any waivers or consents in respect thereof or exercise or
refrain from exercising any other rights or remedies which the Bank may have
under the MHL Documents. The Servicing Agreement shall not be amended or
modified, nor any provision thereof waived, without the Participant's prior
written consent.
3.04. Standard of Care. In handling each MHL Asset, the Bank
will exercise the same care as it normally exercises with respect to loans in
which no participations are sold, but the Bank shall have no further
responsibility to the Participant except as expressly provided herein and except
for its own gross negligence or willful misconduct which resulted in actual loss
to the Participant. The Bank shall not by reason of this Agreement be a trustee
for, or otherwise have a fiduciary relationship with, the Participant.
3.05. Representations. The Bank represents and warrants to the
Participant that:
(a) Organization; Powers. The Bank is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
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(b) Authorization; Enforceability. The Participation and
transactions related thereto are within the Bank's powers and have been duly
authorized by all necessary action. This Agreement has been duly executed and
delivered by the Bank and constitutes a legal, valid and binding obligation of
the Bank, enforceable in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (ii) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) Governmental Approvals; No Conflicts. The Participation (i)
does not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except for such as have been
obtained or made and are in full force and effect and (ii) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Bank or any order of any Governmental Authority.
(d) Litigation. There are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority now pending against or, to the
knowledge of the Bank, threatened against or affecting the Bank or any of its
subsidiaries that involve this Agreement or the Participation.
(e) MHL Assets. The Bank is the current owner of the MHL Assets,
free and clear of any Liens. The information set forth on Annex 1 hereto is true
and correct in all material respects. Each MHL Asset meets the criteria set
forth on Annex 3 hereto.
(f) Tax VTL Ratio. The sum for each MHL Asset of the excess of
(x) the aggregate value of the real property within the meaning of Code Section
856(c)(5)(C) directly securing the MHL Asset over (y) the principal amount of
any indebtedness that is senior to such MHL Asset and secured by the same
property, represents at least eighty percent (80%) of the fair market value of
the MHL Assets; provided that the amount of such excess for any MHL Asset shall
not exceed the lesser of the fair market value of the MHL Asset or the
outstanding principal balance of such MHL Asset.
SECTION 4. Participant Undertakings.
4.01. Representations. The Participant represents and warrants
to the Bank that:
(a) Organization; Powers. The Participant is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
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Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
(b) Authorization; Enforceability. The Participation and
transactions related thereto are within the Participant's corporate powers and
have been duly authorized by all necessary corporate and, if required, by all
necessary shareholder action. This Agreement has been duly executed and
delivered by the Participant and constitutes a legal, valid and binding
obligation of the Participant, enforceable in accordance with its terms, except
as such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (ii) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) Governmental Approvals; No Conflicts. The Participation (i)
does not require the Participant to obtain any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except for such as have been obtained or made and are in full force and effect
and (ii) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Participant or any order of any
Governmental Authority.
4.02. Other Relationships. The Participant acknowledges that the
Bank and its affiliates may have commercial banking, trust or other fiduciary
relationships and/or other business relationships, including extensions of
credit, financial advisory arrangements and deposits, with the MHL Borrowers in
addition to the MHL Documents.
4.03. Confidentiality. The Participant agrees to maintain the
confidentiality of any MHL Documents or any non-public information relating to
each MHL Borrower which it may obtain from the Bank in connection herewith.
4.04. Notice to Borrower. The Participant and the Bank each
acknowledges that the other may notify the MHL Borrowers of the Participation.
4.05. Indemnification. Unless recovered by the Bank from or for
the account of the MHL Borrowers promptly after demand therefor, the Participant
will pay to the Bank all expenses of collection or enforcement of each MHL
Asset, except for those incurred by reason of the Bank's gross negligence or
willful misconduct.
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SECTION 5. Miscellaneous.
5.01. Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Bank, to it at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention of (Telephone No. ;
Telephone No. );
(b) if to the Participant, to it at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of (Telecopy No.
; Telephone No. ); and
(c) if to the Servicer, to it at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000, Attention of (Telecopy No.
; Telephone No. ).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
5.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay
by the Participant in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Participant hereunder are
cumulative and are not exclusive of any rights or remedies that it would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Bank or the Servicer therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the entering into of the Participation shall not be construed as a waiver of any
default hereunder, regardless of whether the Participant may have had notice or
knowledge of such default at the time.
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(b) Amendments. Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Bank, the Participant and the Servicer.
5.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Bank shall pay (i) all reasonable
out-of-pocket expenses incurred by the Participant, including the reasonable
fees, charges and disbursements of counsel for the Participant, in connection
with the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Participant, including the fees, charges
and disbursements of any counsel for the Participant, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Participation
made hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) Indemnification by the Participant. The Participant shall
indemnify the Bank and each Related Party of the Bank (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Participation or any
other transactions contemplated hereby, (ii) the Participation or the use of the
proceeds therefrom or (iii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Payments. All amounts due under this Section shall be
payable not later than five (5) Business Days after written demand therefor.
5.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the Bank
nor the Servicer may assign or otherwise transfer
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any of its rights or obligations hereunder without the prior written consent of
the Participant (and any attempted assignment or transfer by the Bank or the
Servicer without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Participations. The Participant may, without the consent of
the Bank, sell participations to one or more banks or other entities in all or a
portion of the Participant's rights and obligations under this Agreement.
5.05. Survival. All covenants, agreements, representations and
warranties made by the Bank herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Participant and shall survive the execution and
delivery of this Agreement and the making of the Participation, regardless of
any investigation made by the Participant or on its behalf and notwithstanding
that the Participant may have had notice or knowledge of any default or
incorrect representation or warranty on the Effective Date or at any other time,
and shall continue in full force and effect during the term of this Agreement.
5.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement constitutes
the entire contract among the parties relating to the subject matter hereof and
supersedes any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement shall become effective
when it shall have been executed by the Participant and when the Participant
shall have received a counterpart hereof bearing the signature of the Bank and
the Servicer, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and (subject to Section 5.04) their respective successors and
assigns.
5.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
5.08. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
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5.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.10. Term of Agreement. This Agreement shall terminate on the
date that the Participant has received final payment with respect to all MHL
Assets.
5.11. Captions. Section headings used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Participation Agreement to be duly executed and delivered as of the day and year
first above written.
[ ]
By
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Name:
Title:
CHASE PREFERRED CAPITAL CORPORATION
By
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Name:
Title:
CHASE MANHATTAN MORTGAGE CORPORATION
By
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Name:
Title:
Master Participation Agreement
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ANNEX 1
SCHEDULE OF MHL ASSETS
[separately delivered to Servicer]
Annex 1 to Master Participation Agreement
15
ANNEX 2
COPY OF SERVICING AGREEMENT
[attached hereto]
Annex 2 to Master Participation Agreement
