PLACEMENT AGREEMENT
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This PLACEMENT AGREEMENT, dated May 21, 1998 (this "Agreement"), by and
among Charter Municipal Mortgage Acceptance Company ("Charter"), Charter MAC
Floater Certificate Trust I (the "Certificate Trust"), Charter MAC Owner Trust I
(the "Owner Trust") and Xxxxxxx, Xxxxx & Co., as placement agent (the "Placement
Agent").
WITNESSETH:
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WHEREAS, the Certificate Trust, a Delaware Business Trust created and
formed under the laws of the State of Delaware pursuant to that certain Trust
Agreement, (the "Certificate Trust Agreement") dated May 21, 1998, among the
Owner Trust, First Tennessee Bank National Association, as Tender Agent and
Certificate Trust Agent, and Wilmington Trust Company as the Certificate
Trustee, expects to issue, pursuant to the Certificate Trust Agreement, from
time to time Charter MAC Low Floater Certificate Trust I Variable Rate Demand
Certificates of Beneficial Ownership (the "Certificates") in an initial
aggregate principal amount of $58,000,000 and a total aggregate principal amount
of not to exceed $150,000,000;
WHEREAS, pursuant to the terms and conditions hereof, the Certificate
Trust desires to appoint the Placement Agent to act as the exclusive agent in
connection with the placement of the Certificates;
WHEREAS, pursuant to the terms and conditions hereof, the Placement Agent
desires to accept such appointment on the terms and conditions set forth herein;
NOW THEREFORE, for and in consideration of the premises herein made and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and subject to the conditions herein set forth, the parties
hereto, intending to be legally bound, agree as follows:
Section 1. Definitions.
Capitalized terms used and not defined in this Agreement shall have the
meanings assigned to them in the Certificate Trust Agreement.
Section 2. Appointment and Obligations of Placement Agent.
(a) On the basis of the representations, warranties and covenants herein
contained, but subject to the terms and conditions herein contained, the
Placement Agent is hereby appointed by the Certificate Trust, and the Placement
Agent hereby accepts such appointment, to act as exclusive agent in connection
with the placement of the Certificates for the purpose of finding Qualified (as
defined in Section 2(b)) subscribers for the Certificates through the placement
herein contemplated. Subject to the performance by the Certificate Trust of its
obligations to be performed hereunder, and the completeness and accuracy of all
of the representations and warranties of the Certificate Trust contained herein,
the Placement Agent
hereby accepts such agency and agrees on the terms and conditions herein set
forth to use its best efforts to find Qualified subscribers for Certificates
having a total aggregate principal amount of not to exceed $150,000,000.
(b) The Placement Agent agrees to directly solicit offers to purchase
Certificates, in connection with the placement thereof, exclusively from persons
who have identified themselves to the Placement Agent as, and who agree to
execute the Master Investment Representation Letter substantially in the form
attached as Exhibit B to the Private Placement Memorandum representing that such
persons are "qualified institutional buyers" as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act") and are "qualified
purchasers" as such term is defined in Section 2(a)(51) of the Investment
Company Act of 1940, as amended (the "Investment Company Act") (such persons are
referred to herein as "Qualified"). The initial placement of Certificates shall
be made only if Certificates having an initial aggregate principal amount of
$58,000,000 are sold and only if each Certificate is sold against payment in
same-day funds.
(c) The Placement Agent will act as agent for the Certificate Trust by
directly contacting only Qualified persons or entities. The Placement Agent will
follow the procedures set forth in this Agreement in soliciting offers in
connection with the placement, and such solicitation of offers by it in
connection with the placement will not cause the offer and sale of the
Certificates to fail to be exempt as hereinabove described in paragraph (b) from
the registration and prospectus delivery requirements of the Securities Act
solely by reason of such solicitation, without limiting the generality of the
foregoing:
(1) prior to the purchase of the Certificates, each purchaser of
Certificates will be required to execute and deliver a Master
Investment Representation Letter, substantially in the form
attached as Exhibit B to the Memorandum (as defined herein);
and,
(2) the Placement Agent will not (i) utilize any form of general
solicitation or general advertising in connection with the
initial placement of the Certificates, including any
advertisement, article, notice or other communication
published in any newspaper, magazine or similar medium or
broadcast over television or radio, or (ii) conduct any
seminar or meeting with respect to the Certificates whose
attendees have been invited by general solicitation or
advertising.
(d) The Placement Agent shall not, in fulfilling its obligations
hereunder, be required to act as an underwriter for the Certificates, and is in
no way obligated, directly or indirectly, to advance its own funds to purchase
any Certificates.
Section 3. Private Placement Memorandum.
(a) The Certificate Trust, the Owner Trust and Charter authorize the use
of the Private Placement Memorandum dated May 21, 1998, relating to the
Certificates (the "Memorandum"), in connection with the offering and sale of the
Certificates. The Certificate
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Trust, the Owner Trust and Charter shall furnish or cause to be furnished to the
Placement Agent copies of the Memorandum in such quantities as shall be
requested by the Placement Agent.
(b) The Certificate Trust, the Owner Trust and Charter shall promptly
advise the Placement Agent of the institution of any action, suit, proceeding,
inquiry or investigation known to it seeking to prohibit, restrain or otherwise
affect the use of the Memorandum in connection with the offering or sale of the
Certificates.
Section 4. Dealing in Certificates.
The Placement Agent, in its individual capacity, may in good faith buy,
sell, own, hold and deal in any of the Certificates, and may join in any action
which any Holder may be entitled to take with like effect as if it was not
Placement Agent. The Placement Agent shall have all the rights of a Holder at
any time that it is the owner of any Certificates.
Section 5. Fees and Expenses.
(a) Charter will pay the fee of $232,000 to Xxxxxxx, Sachs & Co. for
acting as Placement Agent on the Closing Date.
(b) Charter will pay all costs and expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, issuance
and delivery of the Certificates and the preparation and delivery of the
Certificate Trust Agreement, the Owner Trust Agreement and the Transaction
Documents (as hereinafter defined), (ii) the fees and disbursements of the
Certificate Trust's, the Owner Trust's and Charter's counsel and accountants, if
any, (iii) the fees and disbursements of Nixon, Hargrave, Devans & Xxxxx LLP, as
Placement Agent counsel, (iv) the fees and disbursements of Federated's counsel
in excess of $35,000; (v) the printing and delivery to the Placement Agent in
such quantities as it shall reasonably request of copies of the Memorandum and
of each amendment and supplement thereto, and (vi) the fees (including legal
fees) of the Certificate Trust, the Owner Trust and Charter.
Section 6. Representations and Warranties.
The Certificate Trust, the Owner Trust and Charter each represents and
warrants to the Placement Agent as follows:
(i) The Certificate Trust, the Owner Trust, and Charter are each
Delaware Business Trusts formed, existing and in good standing under the laws of
the State of Delaware, each with the requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Certificate Trust
Agreement, and the Owner Trust Agreement as applicable, and any other agreements
or instruments entered into or delivered in connection with the issuance and
sale of the Certificates (collectively, the "Transaction Documents").
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(ii) This Agreement has been duly authorized, executed and delivered by
each and constitutes a legal, valid and binding obligation of each, enforceable
in accordance with its terms. The execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby, does
not contravene, or constitute a default under, any provision of applicable law
or regulation and does not contravene or constitute a default under the
Certificate Trust Agreement, the Owner Trust Agreement, the Transaction
Documents or any agreement, organizational document, judgment, injunction,
order, decree or other instrument binding upon the Certificate Trust, the Owner
Trust or Charter or result in the creation or imposition of any lien on assets
of the Certificate Trust, the Owner Trust or Charter.
(iii) Neither the Certificate Trust, the Owner Trust nor Charter or any
affiliate of any of the foregoing is required to register as an investment
company under the Investment Company Act nor is either the Certificate Trust,
the Owner Trust or Charter controlled by an investment company within the
meaning of the Investment Company Act.
(iv) The Memorandum, other than the information contained under the
headings entitled "THE LIQUIDITY BANKS" and "THE SURETY PROVIDER," does not, and
on the Closing Date will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of circumstances under which they are made, not
misleading.
(v) No consent, approval, authorization, or order of or filing with, any
court or regulatory, supervisory or governmental agency or body is required
under any law in connection with the execution, delivery and performance by the
Certificate Trust, the Owner Trust or Charter of the Transaction Documents.
Section 7. Sale and Delivery to Purchasers; Closing.
Payment of the purchase price for and delivery of the initial installment
of Certificates, shall be made 12:00 Noon, New York City time, on the Closing
Date in same-day funds.
Section 8. Conditions Precedent to the Obligations of the Placement Agent.
(a) The obligations of the Placement Agent under this Agreement are
subject to the following conditions precedent:
(i) The representations and warranties of the Certificate Trust, the
Owner Trust and Charter contained in this Agreement (as hereinafter defined)
shall be true, correct and complete in all material respects on the date hereof
and on the Closing Date, as if made again at such Closing Date, and the
Memorandum (as the same may be supplemented or amended with the written approval
of the Placement Agent), other than the information contained under the headings
entitled "THE LIQUIDITY BANKS" and "THE SURETY PROVIDER," shall be true, correct
and complete in all material respects and shall not contain any untrue statement
of material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not misleading.
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(ii) the opinions and certificates described in Exhibit A attached hereto
shall have been executed and delivered.
(iii) The Placement Agent shall have received such additional opinions,
certificates, instruments and other documents as the Placement Agent may
reasonably request to evidence the due execution and delivery of, and the due
performance or satisfaction at or prior to the Closing Date of, all agreements
and covenants then to be performed and all conditions then to be satisfied as
contemplated by the Certificate Trust Agreement, the Owner Trust Agreement and
the other Transaction Documents, and the truth, correctness and completeness as
of the Closing Date of the information contained in the Memorandum and of the
representations and warranties contained in this Agreement, the Certificate
Trust Agreement, the Owner Trust and the Transaction Documents.
Section 9. Termination of this Agreement.
In the event the offering is commenced but no Certificates shall have been
purchased, this Agreement shall terminate without obligation on the part of any
party to this Agreement; provided, however, that in the event the Certificate
Trust, the Owner Trust or Charter do not perform any obligation under this
Agreement or any representation and warranty hereunder is incomplete or
inaccurate, this Agreement and all of the Placement Agent's obligations
hereunder may be immediately cancelled by the Placement Agent by notice thereof
to the Certificate Trust, the Owner Trust or Charter. Any such cancellation
shall be without liability of any party to any other party except that the
provisions of Sections 5, 10 and 11 shall survive any such cancellation.
Section 10. Indemnification.
(a) Each of the Certificate Trust, the Owner Trust and Charter agrees to
indemnify and hold harmless the Placement Agent, its respective officers,
directors, employees and agents and each person who controls the Placement Agent
within the meaning of the Securities Act or the Securities Exchange Act of 1934,
as amended (collectively, the "Securities Acts"), against any losses, claims,
liabilities and expenses which it may incur in connection with the performance
by the Placement Agent of its duties and obligations as Placement Agent under
this Agreement, the Certificate Trust Agreement, the Owner Trust Agreement and
the Memorandum (except to the extent that any such loss, claim, damage,
liability or expense results from the Placement Agent's negligence, bad faith or
willful misconduct) or arising from or based upon the transactions contemplated
in this Agreement, the Certificate Trust Agreement, the Owner Trust Agreement
and the Memorandum including, but not limited to, any such loss, claim, damage,
liability or expenses relating specifically to any of the following:
(i) the imposition of any tax on the Certificate Trust or the Owner
Trust by the Internal Revenue Service or the failure of the Internal Revenue
Service to permit the Holders of the Certificates to exclude from gross income
the Low Floater Certificate Distribution Payments made by the Certificate Trust;
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(ii) the imposition of any tax on the Placement Agent relating to the
transactions contemplated by this Agreement, the Certificate Trust Agreement,
the Owner Trust Agreement and the Memorandum or the performance of the Placement
Agent's duties thereunder, other than taxes based upon income and franchise
taxes payable to the Placement Agent with respect to the amounts paid to it in
connection with the transactions contemplated in this Agreement, the Certificate
Trust Agreement and the Owner Trust Agreement as compensation for services
rendered pursuant to this Agreement, the Certificate Trust Agreement and the
Owner Trust Agreement;
(iii) the accuracy or completeness of information required to be furnished
to Holders pursuant to the Certificate Trust Agreement and the Owner Trust
Agreement or the discharge by the Certificate Trust or the Owner Trust of its
obligations thereunder to provide such information;
(iv) any untrue statement or alleged untrue statement of a material fact
contained in the Memorandum, other than the information contained under the
headings entitled "THE LIQUIDITY BANKS" and "THE SURETY PROVIDER," or in any
written information furnished to the Placement Agent by the Certificate Trust or
the Owner Trust, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Certificate Trust or the Owner
Trust; and
(vi) any and all expense whatsoever, as incurred (including, subject to
Section 10(b) hereof, the reasonable fees and disbursements of counsel),
reasonably incurred in enforcing this Section 10(a) or in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, to the extent
that any such expense is not paid under (v) or (vi) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished by the Placement Agent
expressly for use in the Memorandum.
(b) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying party be liable for fees and expenses
of more than one counsel separate from its own counsel for all parties
indemnified hereunder in
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connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, which approval
shall not be unreasonably withheld, provided that, if such indemnified party or
parties reasonably determine that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party or parties, then such indemnifying party or parties shall not be entitled
to assume such defense. If the indemnifying party or parties are not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for the indemnified party or parties shall be entitled to
conduct the defense of such indemnified party or parties and counsel for the
indemnifying party or parties shall be entitled to conduct the defense of such
indemnifying party or parties, it being understood that both such counsel will
cooperate with each other to conduct the defense of such action as efficiently
as possible. If an indemnifying party assumes the defense of such action, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such action.
(c) If the indemnification provided for in this Section 10 shall for any
reason be unavailable or insufficient to hold harmless an indemnified party
hereunder in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Certificate Trust,
the Owner Trust and Charter, on the one hand, and the Placement Agent, on the
other, from the offering of the Certificates or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Certificate Trust, the Owner Trust and
Charter, on the one hand, and the Placement Agent, on the other, with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Certificate Trust, the
Owner Trust and Charter, on the one hand, and the Placement Agent, on the other,
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Certificates purchased under
this Agreement (before deducting expenses) received by the Certificate Trust and
the Owner Trust, on the one hand, and the total fees received by the Placement
Agent with respect to the Certificates purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the
Certificates under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Certificate Trust, the Owner Trust and
Charter, on the one hand, or the Placement Agent, on the other hand, and the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Certificate
Trust, the Owner Trust, Charter and the Placement Agent agree that it would not
be just and equitable if contributions pursuant to this Section 10(c) were to be
determined by pro rata allocation or by any other method of allocation which
does
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not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 10(c) shall be deemed to include, for purposes of this Section 10(c),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10(c), the Placement Agent shall
not be required to contribute any amount in excess of the amount by which the
total fees received by it, exceeds the amount of any damages which the Placement
Agent has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Section 11. Placement Agent's Performance; Duty of Care.
The duties and obligations of the Placement Agent shall be determined
solely by the express provisions of this Agreement. No implied covenants or
obligations of or against the Placement Agent shall be read into this Agreement.
In the absence of negligence, bad faith or willful misconduct on the part of the
Placement Agent, the Placement Agent may conclusively rely upon any document
furnished to it which purports to conform to the requirements of this Agreement,
the Certificate Trust Agreement or the Owner Trust Agreement as to the truth of
the statements expressed therein. The Placement Agent shall be protected in
acting upon any document or communication reasonably believed by it to have been
signed, presented or made by the proper party or parties. Except as provided in
Section 10 hereof, the Placement Agent shall not incur any liability to the
Certificate Trust, the Owner Trust or Charter or any Holder in its individual
capacities or as Placement Agent for any action or failure to act in connection
with a remarketing or otherwise, except as a result of its negligence, bad faith
or willful misconduct.
Section 12. Terms of Agreement.
Unless otherwise terminated in accordance with the provisions hereof, this
Agreement shall remain in full force and effect from the date hereof until the
first day thereafter on which all Certificates shall have been sold as
contemplated by Section 2(b) hereof, provided however, that Sections 5, 10, 11
and 13 of this Agreement shall survive for one year after any termination or
expiration of this Agreement.
Section 13. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this Agreement
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Placement Agent or any controlling
person, or by or on behalf of the Certificate Trust, the Owner Trust or Charter
or any controlling person, director or officer of the Certificate Trust, the
Owner Trust or Charter and shall survive for one year after delivery of the
Certificates to the purchasers thereof.
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Section 14. Amendments.
This Agreement may be amended by any instrument signed by all of the
parties hereto so long as this Agreement as amended is not inconsistent with the
Certificate Trust Agreement or the Owner Trust Agreement in effect as of the
date of any such amendment.
Section 15. Notices.
Notices hereunder shall be given, except as otherwise provided herein or
in the Certificate Trust Agreement, in writing, and shall be delivered by hand,
mailed by certified mail, postage prepaid, delivered by overnight courier,
charges prepaid, or telecopied, addressed as set forth below:
If to the Placement Agent:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxxxx
If to the Certificate Trust or the Owner Trust:
Wilmington Trust Company, as Trustee
Xxxxxx Xxxxxx Xxxxx - 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Regarding Charter MAC Floater
Certificate Trust I or Regarding
Charter MAC Owner Trust I, or as
applicable
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Charter:
Charter Municipal Mortgage Acceptance Company
c/o Related Capital LP
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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Each party hereto may change the address for service of notice upon it by
a notice in writing to the other parties hereto.
Section 16. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Placement Agent, the Certificate Trust, the Owner Trust and Charter and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than parties hereto and their respective successors and the controlling persons
and officers, directors, employees and agents referred to in Section 10 and
their respective heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons and officers, directors,
employees and agents and their respective heirs and legal representatives, and
for the benefit of no other person, firm or corporation.
Section 17. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, excluding conflict of law rules.
Section 18. Counterparts.
This Agreement may be signed in various counterparts which together shall
constitute one agreement.
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IN WITNESS WHEREOF, each of the Certificate Trust, the Owner Trust,
Charter and the Placement Agent has caused this Agreement to be executed in its
name and on its behalf by one of its duly authorized officers on the date first
above written.
CHARTER MAC FLOATER CERTIFICATE
TRUST I
By: Charter Mac Owner Trust I,
Depositor
By: Related Charter, LP,
a Delaware limited partnership,
its Manager
By: Related Charter, LLC,
a Delaware limited liability company,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & COO
CHARTER MAC OWNER TRUST I
By: Related Charter, LP,
a Delaware limited partnership,
its Manager
By: Related Charter, LLC,
a Delaware limited liability company,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & COO
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CHARTER MUNICIPAL MORTGAGE
ACCEPTANCE COMPANY
By: Related Charter, LP,
a Delaware limited partnership,
its Manager
By: Related Charter, LLC,
a Delaware limited liability company,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & COO
XXXXXXX, XXXXX & CO.,
as Placement Agent
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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EXHIBIT A
At or prior to the Closing, the Placement Agent shall receive the following
documents:
(i) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to Charter, dated the date of Closing, to the effect that
(a) Charter is duly organized and validly existing as a Delaware Business Trust
under the laws of the State of Delaware and duly qualified as a foreign business
trust in the State of New York; (b) the Transaction Documents to which Charter
is a party have each been duly authorized, executed and delivered by Charter and
each constitutes a valid, binding and enforceable agreement of Charter in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by bankruptcy, reorganization, moratorium, insolvency or other
laws affecting creditors' rights and remedies generally, or by general
principles of equity (regardless of whether considered in a proceeding at law or
in equity); (c) all authorizations, consents, approvals and reviews of
governmental bodies or regulatory authorities required for Charter's execution,
delivery, acceptance and performance of the Transaction Documents to which
Charter is a party have been obtained or effected; and (d) the execution and
delivery of the Transaction Documents to which Charter is a party, and
compliance with the provisions of each of them, under the circumstances
contemplated hereby and thereby, do not, as of the date of Closing, in any
material respect conflict with or constitute on the part of Charter a breach of
or default under any agreement or other instrument known to such Counsel to
which Charter is a party or any existing law, administrative regulation, court
order or consent decree known to such Counsel to which Charter is subject; and
(e) to the best of such Counsel's knowledge, there is no action, suit,
proceeding or investigation before or by any court, public board or body,
pending or threatened against or affecting Charter wherein an unfavorable
decision, ruling or finding would have a material adverse effect upon the
transactions contemplated by the Transaction Documents to which Charter is a
party. In addition, such Counsel shall state in its letter containing the
foregoing opinion, or in a separate letter dated the date of Closing and
addressed to the Placement Agent that, based upon the participation of such
counsel in the preparation of the Private Placement Memorandum as Counsel for
Charter and without having undertaken to determine independently the accuracy or
completeness of the statements contained in the section entitled "INTRODUCTION,"
"LOW FLOATER CERTIFICATES" (other than the subsection entitled "Book-Entry Only
System"), "TENDERS AND REDEMPTIONS," "THE MUNICIPAL BONDS," "CHARTER," "THE
MANAGER AND SERVICER," "CERTAIN FEDERAL INCOME TAX CONSIDERATIONS," "TAX-EXEMPT
STATUS OF INTEREST ON THE MUNICIPAL BONDS," "PASS-THROUGH STATUS OF THE OWNER
TRUST AND CERTIFICATE TRUST," TAX OWNERSHIP OF THE LOW FLOATER CERTIFICATES,"
"ADDITIONAL TAX CONSIDERATIONS," "RIGHTS AND POWERS OF HOLDERS," "LIABILITY OF
HOLDERS," PARTNERSHIP STATUS," the subsections entitled "THE OWNER TRUST" and
"THE CERTIFICATE TRUST AGREEMENT" contained in Exhibit E and Schedule 1 in the
Private Placement Memorandum, such counsel has no reason to believe that, as of
the date of Closing, the Private Placement Memorandum (except for financial and
statistical data contained therein, as to which no view need be expressed)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
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(ii) the opinion of Counsel to Charter, dated the date of Closing,
regarding the ownership of the Municipal Bonds in the event of the bankruptcy of
Charter;
(iii) the opinion of Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Origination Trust, dated the date of Closing, to
the effect that (a) the Origination Trust is duly organized and validly existing
as a Delaware Business Trust under the laws of the State of Delaware and duly
qualified as a foreign business trust in the State of New York; (b) the
Transaction Documents to which the Origination Trust is a party have each been
duly authorized, executed and delivered by the Origination Trust and each
constitutes a valid, binding and enforceable agreement of the Origination Trust
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by bankruptcy, reorganization, moratorium, insolvency or
other laws affecting creditors' rights and remedies generally, or by general
principles of equity (regardless of whether considered in a proceeding at law or
in equity); (c) all authorizations, consents, approvals and reviews of
governmental bodies or regulatory authorities required for the Origination
Trust's execution, delivery, acceptance and performance of the Transaction
Documents to which the Origination Trust is a party have been obtained or
effected; (d) the execution and delivery of the Transaction Documents to which
Origination Trust is a party and compliance with the provisions of each of them,
under the circumstances contemplated hereby and thereby, do not, as of the date
of Closing, in any material respect conflict with or constitute on the part of
the Origination Trust a breach of or default under any agreement or other
instrument known to such Counsel to which the Origination Trust is a party or
any existing law, administrative regulation, court order or consent decree known
to such Counsel to which the Origination Trust is subject; and (e) to the best
of such Counsel's knowledge, there is no action, suit, proceeding or
investigation before or by any court, public board or body, pending or
threatened against or affecting the Origination Trust wherein an unfavorable
decision, ruling or finding would have a material adverse effect upon the
transactions contemplated by the Transaction Documents to which Origination
Trust is a party;
(iv) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Origination Trust, dated the date of Closing, to
the effect that in the event of a bankruptcy of Charter or any affiliate of
Charter, it would not be a proper exercise by a bankruptcy court to order
substantive consolidation, under bankruptcy law principles, of the assets and
liabilities of the Origination Trust with those of the bankruptcy estate of
Charter or of any affiliate of Charter;
(v) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Origination Trust, dated the date of Closing,
regarding the perfection of the security interest created by the pledge of the
Residual Certificate to the Origination Trust;
(vi) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Owner Trust, dated the date of Closing, to the
effect that (a) the Owner Trust is duly organized and validly existing as a
Delaware Business Trust under the laws of the State of Delaware and duly
qualified as a foreign business trust in the State of New York; (b) the
Transaction Documents to which the Owner Trust is a party have each been duly
authorized, executed and delivered by the Owner Trust and each constitutes a
valid, binding and enforceable agreement of the Owner Trust in accordance with
its terms, except to the extent that the
A-2
enforceability thereof may be limited by bankruptcy, reorganization, moratorium,
insolvency or other laws affecting creditors' rights and remedies generally, or
by general principles of equity (regardless of whether considered in a
proceeding at law or in equity); (c) all authorizations, consents, approvals and
reviews of governmental bodies or regulatory authorities required for the Owner
Trust's execution, delivery, acceptance and performance of the Transaction
Documents to which the Owner Trust is a party have been obtained or effected;
and (d) the execution and delivery of the Transaction Documents to which the
Owner Trust is a party and compliance with the provisions of each of them, under
the circumstances contemplated hereby and thereby, do not, as of the date of
Closing, in any material respect conflict with or constitute on the part of the
Owner Trust a breach of or default under any agreement or other instrument known
to such Counsel to which the Owner Trust is a party or any existing law,
administrative regulation, court order or consent decree known to such Counsel
to which the Owner Trust is subject; and (e) to the best of such Counsel's
knowledge, there is no action, suit, proceeding or investigation before or by
any court, public board or body, pending or threatened against or affecting the
Owner Trust wherein an unfavorable decision, ruling or finding would have a
material adverse effect upon the transactions contemplated by the Transaction
Documents to which the Owner Trust is a party;
(vii) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Owner Trust, dated the date of Closing, to the
effect that in the event of a bankruptcy of Charter or any affiliate of Charter,
it would not be a proper exercise by a bankruptcy court to order substantive
consolidation, under bankruptcy law principles, of the assets and liabilities of
the Owner Trust with those of the bankruptcy estate of Charter or of any
affiliate of Charter;
(viii) an opinion, dated the date of Closing, to the effect that (a)
the Manager has been duly organized and is validly existing under the laws of
the State of Delaware, and is duly qualified to do business under the laws of
the State of New York; (b) the Transaction Documents to which the Manager is a
party has been duly authorized, executed and delivered by the Manager and each
constitutes a valid, binding and enforceable agreement of the Manager in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by bankruptcy, reorganization, moratorium, insolvency or other
laws affecting creditors' rights and remedies generally, or by general
principles of equity (regardless of whether considered in a proceeding at law or
in equity); (c) all authorizations, consents, approvals and reviews of
governmental bodies or regulatory authorities required for the Manager's
execution, delivery, acceptance and performance of the Transaction Documents to
which the Manager is a party has have been obtained or effected; (d) the
execution and delivery of the Transaction Documents to which the Manager is a
party, and compliance with its provisions, under the circumstances contemplated
hereby and thereby, do not, as of the date of Closing, in any material respect
conflict with or constitute on the part of the Manager a breach of or default
under any agreement or other instrument known to such Counsel to which the
Manager is a party or any existing law, administrative regulation, court order
or consent decree known to such Counsel to which the Manager is subject; and (e)
to the best of such Counsel's knowledge, there is no action, suit, proceeding or
investigation before or by any court, public board or body, pending or
threatened against or affecting the Manager wherein an unfavorable decision,
ruling or finding would have a material adverse effect upon the transactions
contemplated by the Transaction Documents to which the Manager is a party;
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(ix) the opinions of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Special Tax Counsel, dated the date of Closing, regarding the
exclusion from gross income under the Internal Revenue Code of 1986, as amended
(the "Code"), of the Low Floater Certificate Distribution Payments made by the
Certificate Trust;
(x) the opinion of Battle Xxxxxx LLP, Counsel to the Surety
Provider, dated the date of Closing, to the effect that (a) the Surety Provider
has been duly organized and is validly existing under the laws of the State of
New York, and is duly qualified to do business under the laws of the State of
New York; (b) the Transaction Documents to which the Surety Provider is a party
have each been duly authorized, executed and delivered by the Surety Provider
and each constitutes a valid, binding and enforceable agreement of the Surety
Provider in accordance with its terms, except to the extent that the
enforceability thereof may be limited by bankruptcy, reorganization, moratorium,
insolvency or other laws affecting creditors' rights and remedies generally, or
by general principles of equity (regardless of whether considered in a
proceeding at law or in equity); (c) all authorizations, consents, approvals and
reviews of governmental bodies or regulatory authorities required for the Surety
Provider's execution, delivery, acceptance and performance of the Transaction
Documents to which the Surety Provider is a party have been obtained or
effected; and (d) the execution and delivery of the Transaction Documents to
which the Surety Provider is a party, and compliance with the provisions of all
of them, under the circumstances contemplated hereby and thereby, do not, as of
the date of Closing, in any material respect conflict with or constitute on the
part of the Surety Provider a breach of or default under any agreement or other
instrument known to such Counsel to which the Surety Provider is a party or any
existing law, administrative regulation, court order or consent decree known to
such Counsel to which the Surety Provider is subject; and (e) to the best of
such Counsel's knowledge, there is no action, suit, proceeding or investigation
before or by any court, public board or body, pending or threatened against or
affecting the Surety Provider wherein an unfavorable decision, ruling or finding
would have a material adverse effect upon the transactions contemplated by the
Transaction Documents to which the Surety Provider is a party. In addition, such
Counsel shall state in its letter containing the foregoing opinion, or in a
separate letter dated the date of Closing and addressed to the Placement Agent
that the information in the Private Placement Memorandum, as of the date of
Closing, under the headings "Liquidity Agreement," "Liquidity Pledge and
Security Agreement," "The Surety Provider," "Certificate Surety Bond," "The
Insurance Agreement" and "Summary of Certain Agreements--The Insurance
Agreement" is true and correct in all material respects;
(xi) the opinion of Battle Xxxxxx LLP, Counsel to the Surety
Provider, dated the date of Closing, to the effect that the Certificate Surety
Bond and the Insurance Agreement are not subject to the registration
requirements of the Securities Act of 1933, as amended;
(xii) the opinion of XxXxxxxxxx Xxxxxxxx, Counsel to the
Administrative Agent, dated the date of Closing, to the effect that (a) the
Administrative Agent has been duly organized and is validly existing under the
laws of the United States of America; (b) the Transaction Documents to which the
Administrative Agent is a party have each been duly authorized, executed and
delivered by the Originator and each constitutes a valid, binding and
enforceable agreement of the Administrative Agent in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
bankruptcy, reorganization, moratorium, insolvency or other laws affecting
creditors' rights and remedies generally, or by general
A-4
principles of equity (regardless of whether considered in a proceeding at law or
in equity); (c) all authorizations, consents, approvals and reviews of
governmental bodies or regulatory authorities required for the Administration
Agent's execution, delivery, acceptance and performance of the Transaction
Documents to which the Administrative Agent is a party have been obtained or
effected; and (d) the execution and delivery of the Administration and Custody
Agreement and the Paying Agent Agreement, and compliance with the provisions of
all of them, under the circumstances contemplated hereby and thereby, do not, as
of the date of Closing, in any material respect conflict with or constitute on
the part of the Administrative Agent a breach of or default under any agreement
or other instrument known to such Counsel to which the Administrative Agent is a
party or any existing law, administrative regulation, court order or consent
decree known to such Counsel to which the Administrative Agent is subject; and
(e) to the best of such Counsel's knowledge, there is no action, suit,
proceeding or investigation before or by any court, public board or body,
pending or threatened against or affecting the Collateral Trustee wherein an
unfavorable decision, ruling or finding would have a material adverse effect
upon the transactions contemplated by the Transaction Documents to which the
Administrative Agent is a party;
(xiii) an opinion, dated the date of Closing, to the effect that (a)
the Servicer has been duly organized and is validly existing under the laws of
the State of Delaware, and is duly qualified to do business under the laws of
the State of New York; (b) the Transaction Documents to which the Servicer is a
party has been duly authorized, executed and delivered by the Servicer and each
constitutes a valid, binding and enforceable agreement of the Servicer in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by bankruptcy, reorganization, moratorium, insolvency or other
laws affecting creditors' rights and remedies generally, or by general
principles of equity (regardless of whether considered in a proceeding at law or
in equity); (c) all authorizations, consents, approvals and reviews of
governmental bodies or regulatory authorities required for the Servicer's
execution, delivery, acceptance and performance of the Transaction Documents to
which the Servicer is a party has been obtained or effected; and (d) the
execution and delivery of the Transaction Documents to which the Servicer is a
party, and compliance with its provisions, under the circumstances contemplated
hereby and thereby, do not, as of the date of Closing, in any material respect
conflict with or constitute on the part of the Servicer a breach of or default
under any agreement or other instrument known to such Counsel to which the
Servicer is a party or any existing law, administrative regulation, court order
or consent decree known to such Counsel to which the Servicer is subject; and
(e) to the best of such Counsel's knowledge, there is no action, suit,
proceeding or investigation before or by any court, public board or body,
pending or threatened against or affecting the Servicer wherein an unfavorable
decision, ruling or finding would have a material adverse effect upon the
transactions contemplated by the Transaction Documents to which the Servicer is
a party;
(xiv) the opinion of Xxxxxxxx, Laytons & Finger, P.A., Counsel to
the Registered Trustee, dated the date of Closing, to the effect that (a) the
Registered Trustee has been duly organized and is validly existing under the
laws of the State of Delaware, and is duly qualified to do business under the
laws of the State of New York; (b) the Transaction Documents to which the
Registered Trustee is a party have been duly authorized, executed and delivered
by the Registered Trustee and each constitutes a valid, binding and enforceable
agreement of the Registered Trustee in accordance with its terms, except to the
extent that the
A-5
enforceability thereof may be limited by bankruptcy, reorganization, moratorium,
insolvency or other laws affecting creditors' rights and remedies generally, or
by general principles of equity (regardless of whether considered in a
proceeding at law or in equity); (c) all authorizations, consents, approvals and
reviews of governmental bodies or regulatory authorities required for the Owner
Trust Trustee's execution, delivery, acceptance and performance of the
Transaction Documents to which the Registered Trustee is a party has been
obtained or effected; and (d) the execution and delivery of the Transaction
Documents to which the Registered Trustee is a party, and compliance with its
provisions, under the circumstances contemplated hereby and thereby, do not, as
of the date of Closing, in any material respect conflict with or constitute on
the part of the Registered Trustee a breach of or default under any agreement or
other instrument known to such Counsel to which the Registered Trustee is a
party or any existing law, administrative regulation, court order or consent
decree known to such Counsel to which the Registered Trustee is subject; and (e)
to the best of such Counsel's knowledge, there is no action, suit, proceeding or
investigation before or by any court, public board or body, pending or
threatened against or affecting the Registered Trustee wherein an unfavorable
decision, ruling or finding would have a material adverse effect upon the
transactions contemplated by the Transaction Documents to which the Registered
Trustee is a party;
(xv) the opinion of Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, Counsel to the Certificate Trust, dated the date of Closing, to the
effect that (a) the Certificate Trust is duly organized and validly existing as
a Delaware Business Trust under the laws of the State of Delaware and duly
qualified as a foreign business trust in the State of New York; (b) the
Transaction Documents to which the Certificate Trust is a party have each been
duly authorized, executed and delivered by the Certificate Trust and each
constitutes a valid, binding and enforceable agreement of the Certificate Trust
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by bankruptcy, reorganization, moratorium, insolvency or
other laws affecting creditors' rights and remedies generally, or by general
principles of equity (regardless of whether considered in a proceeding at law or
in equity); (c) all authorizations, consents, approvals and reviews of
governmental bodies or regulatory authorities required for the Certificate
Trust's execution, delivery, acceptance and performance of the Transaction
Documents to which the Certificate Trust is a party have been obtained or
effected; and (d) the execution and delivery of the Transaction Documents to
which the Certificate Trust is a party, and compliance with the provisions of
all of them, under the circumstances contemplated hereby and thereby, do not, as
of the date of Closing, in any material respect conflict with or constitute on
the part of the Certificate Trust a breach of or default under any agreement or
other instrument known to such Counsel to which the Certificate Trust is a party
or any existing law, administrative regulation, court order or consent decree
known to such Counsel to which the Certificate Trust is subject; and (e) to the
best of such Counsel's knowledge, there is no action, suit, proceeding or
investigation before or by any court, public board or body, pending or
threatened against or affecting the Certificate Trust wherein an unfavorable
decision, ruling or finding would have a material adverse effect upon the
transactions contemplated by the Transaction Documents to which the Certificate
Trust is a party;
(xvi) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Certificate Trust, dated the date of Closing, to
the effect that in the event of a bankruptcy of Charter or any affiliate of
Charter, it would not be a proper exercise by a
A-6
bankruptcy court to order substantive consolidation, under bankruptcy law
principles, of the assets and liabilities of the Certificate Trust with those of
the bankruptcy estate of Charter or of any affiliate of Charter;
(xvii) the opinion of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx &
Xxxxxxx, P.A., Counsel to the Certificate Trust, dated the date of Closing,
regarding the perfection of the security interest created by the pledge of the
Senior Certificate to the Certificate Trust;
(xviii) the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Counsel to the
Certificate Trustee, dated the date of Closing, to the effect that (a) the
Certificate Trustee has been duly organized and is validly existing under the
laws of the State of Delaware, and is duly qualified to do business under the
laws of the State of New York; (b) the Transaction Documents to which the
Certificate Trustee is a party have been duly authorized, executed and delivered
by the Certificate Trustee and each constitutes a valid, binding and enforceable
agreement of the Certificate Trustee in accordance with its terms, except to the
extent that the enforceability thereof may be limited by bankruptcy,
reorganization, moratorium, insolvency or other laws affecting creditors' rights
and remedies generally, or by general principles of equity (regardless of
whether considered in a proceeding at law or in equity); (c) all authorizations,
consents, approvals and reviews of governmental bodies or regulatory authorities
required for the Certificate Trustee's execution, delivery, acceptance and
performance of the Transaction Documents to which the Certificate Trustee is a
party have been obtained or effected; and (d) the execution and delivery of the
Transaction Documents to which the Certificate Trustee is a party, and
compliance with its provisions, under the circumstances contemplated hereby and
thereby, do not, as of the date of Closing, in any material respect conflict
with or constitute on the part of the Certificate Trustee a breach of or default
under any agreement or other instrument known to such Counsel to which the
Certificate Trustee is a party or any existing law, administrative regulation,
court order or consent decree known to such Counsel to which the Certificate
Trustee is subject; and (e) to the best of such Counsel's knowledge, there is no
action, suit, proceeding or investigation before or by any court, public board
or body, pending or threatened against or affecting the Certificate Trustee
wherein an unfavorable decision, ruling or finding would have a material adverse
effect upon the transactions contemplated by the Transaction Documents to which
the Certificate Trustee is a party;
(xix) the opinion of Xxxxxxx and Xxxxxx, Counsel to the Liquidity
Banks, dated the date of Closing, to the effect that (a) each of the Liquidity
Banks has been duly organized and is validly existing under the laws of the
foreign jurisdiction pursuant to which each respective Liquidity Banks is
created, and is duly qualified to do business under the laws of the State of New
York; (b) each of the Liquidity Banks has the power and authority to issue the
Liquidity Commitment and to execute the Transaction Documents to which the
Liquidity Banks are a party have been duly authorized, executed and delivered by
the Liquidity Banks and each constitutes a valid, binding and enforceable
agreement of the Liquidity Banks in accordance with its terms, except to the
extent that the enforceability thereof may be limited by bankruptcy,
reorganization, moratorium, insolvency or other laws affecting creditors' rights
and remedies generally, or by general principles of equity (regardless of
whether considered in a proceeding at law or in equity); (d) all authorizations,
consents, approvals and reviews of governmental bodies or regulatory authorities
required for the Liquidity Banks's execution, delivery, acceptance and
performance of the Transaction Documents to which the Liquidity Banks are a
A-7
party have been obtained or effected; and (e) the execution and delivery of the
Transaction Documents to which the Liquidity Banks are a party, and compliance
with the provisions of all of them, under the circumstances contemplated hereby
and thereby, do not, as of the date of Closing, in any material respect conflict
with or constitute on the part of the Liquidity Banks a breach of or default
under any agreement or other instrument known to such Counsel to which the
Liquidity Banks is a party or any existing law, administrative regulation, court
order or consent decree known to such Counsel to which the Liquidity Provider is
subject; and (f) to the best of such Counsel's knowledge, there is no action,
suit, proceeding or investigation before or by any court, public board or body,
pending or threatened against or affecting the Liquidity Banks wherein an
unfavorable decision, ruling or finding would have a material adverse effect
upon the transactions contemplated by the Transaction Documents to which the
Liquidity Banks are a party. In addition, such Counsel shall state in its letter
containing the foregoing opinion, or in a separate letter dated the date of
Closing and addressed to the Placement Agent that the information in the Private
Placement Memorandum, as of the date of Closing, under the heading "Liquidity
Banks" is true and correct in all material respects;
(xx) the opinion of Xxxxxxx and Xxxxxx, Counsel to the Liquidity
Banks, dated the date of Closing, to the effect that the Liquidity Agreement is
not subject to the registration requirements of the Securities Act of 1933, as
amended;
(xxi) the opinion of Nixon, Hargrave, Devans & Xxxxx LLP, New York,
New York, Counsel to the Placement Agent, dated the date of Closing and
addressed to the Placement Agent, to the effect that in connection with the
public offering and sale of the Certificates, the Certificates are not subject
to the registration requirements of the Securities Act of 1933, as amended, and
the Trust Agreement are exempt from qualification as indentures pursuant to the
Trust Indenture Act of 1939, as amended. In addition, such Counsel shall state
in their letter containing the foregoing opinion or in a separate letter, dated
the date of the Closing and addressed to the Placement Agent, that based upon
their participation in the preparation of the Private Placement Memorandum as
Counsel for the Placement Agent and without having undertaken to determine
independently the accuracy, completeness or fairness of the statements contained
in the Private Placement Memorandum, no information has come to their attention
which would lead them to believe that, as of the date of Closing, the Private
Placement Memorandum (except for the financial and statistical data included
therein, the information under the sections entitled "Low Floater Certificates
-- Book-Entry Only System, "Liquidity Banks", "Surety Provider", "Charter", "The
Manager and Servicer" "Certain Federal Income Tax Considerations" and in
Schedule I, as to which no view need be expressed) contains an untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(xxii) certificates, dated the date of Closing, each signed by an
authorized officer of Certificate Trust, Owner Trust and Charter, to the effect
that to the best of his or her knowledge, (a) the representations of each are
true and correct in all material respects as of the date of the Closing; (b)
except as disclosed in the Private Placement Memorandum, no litigation is
pending or threatened against it (i) to restrain or enjoin the issuance or
delivery of any of the Certificates, (ii) in any way contesting or affecting the
authority for the issuance of the Certificates or the validity of the
Certificates, the Certificate Trust Agreement, the Owner Trust or the Placement
Agreement, (iii) in any way contesting the corporate existence or powers of
A-8
the Certificate Trust, the Owner Trust or Charter; (iv) which would, if
successful, result in a material and adverse change in its financial position or
operations; (c) all consents, approvals and authorizations of governmental
bodies required for the due authorization, execution, issuance and delivery of
the Certificates have been obtained; (d) no event has occurred since the date of
the Private Placement Memorandum which is necessary to disclose therein in order
to make the statements and information therein not misleading in any material
respect; and (e) neither the Certificate Trust, the Owner Trust or Charter have,
since formation, incurred any material liabilities other than in the ordinary
course of business or as set forth in or contemplated by the Private Placement
Memorandum;
(xxiii) a certificate dated the date of Closing, and satisfactory to
the Placement Agent, from each of Charter, the Origination in Trust, the Owner
Trust, the Certificate Trust and the General Partner with respect to the Trust
Agreements or Articles or Incorporation, as applicable, and each entity's
respective; by-laws, good standing or formation, as applicable,in the State of
Delaware, qualification to do business in the State of New York, incumbency of
authorized officers, and authorizing resolution, together with exhibits
pertaining to such matters attached thereto;
(xxiv) a certificate dated the date of Closing, and satisfactory to
the Placement Agent, from the Manager and the Servicer with respect to the
Manager's and Servicer's, as the case may be, existence as a limited
partnership, good standing in the State of Delaware, qualification to do
business in the State of New York and partner consents, together with exhibits
pertaining to such matters attached thereto;
(xxv) a certificate dated the date of Closing, and satisfactory to
the Placement Agent, from each of the Liquidity Banks, the Surety Provider, the
Tender Agent and Certificate Trust Agent with respect to the Certificate Trust
Agreement or Articles or Incorporation, as applicable, and each entity's
respective; by-laws, good standing or formation, as applicable,in the State of
Delaware, qualification to do business in the State of New York, if applicable,
incumbency of authorized officers, and authorizing resolution, together with
exhibits pertaining to such matters attached thereto;
(xxvi) the certificate of the Liquidity Banks dated the date of
Closing and in form and substance satisfactory to the Placement Agent and
Charter, signed by a duly authorized officer of the Liquidity Banks, to the
effect that (A) the information describing each of the Liquidity Banks in the
Private Placement Memorandum, as of the date of Closing, is true and correct in
all material respects and (B) the Liquidity Facility has been duly authorized,
executed and delivered by the Liquidity Banks;
(xxvii) the certificate of Charter, signed by a duly authorized
officer of Charter MAC, to the effect that the information relating to Charter,
the Manager, the Servicer and The Related Companies, L.P. in the Private
Placement Memorandum, as of the date hereof is, and as of the date of Closing
will be, true and correct in all material respects;
(xxviii) evidence of compliance and executed copies of certificates and
other documents and opinions required to be delivered as conditions precedent to
the delivery of the
A-9
Surety Bonds pursuant to the Insurance Agreement and as conditions precedent tot
he delivery of the Liquidity Facility pursuant to the Liquidity Agreement;
(xxix) each of the executed Liquidity Facility, Liquidity Surety Bond
and Certificate Surety Bond;
1. two copies of resolutions of Charter directing and authorizing the
execution and delivery of the Certificates, the Private Placement Memorandum and
this Placement Agreement and approving the Draft Private Placement Memorandum;
2. satisfactory evidence that Xxxxx'x Investors Service, Inc. has rated
the Certificates "P-1", and Standard & Poor's Ratings Services has rated the
Certificates "A-1+" which ratings shall not have been lowered or withdrawn prior
to the date of Closing;
(xxx) such additional legal opinions, certificates, proceedings,
instruments and other documents as the Placement Agent or its Counsel may
reasonably request to evidence the due execution and issuance of the
Certificates.
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