CONTRIBUTION AGREEMENT
Dated as of May 21, 1998
Between
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
and
CHARTER MAC ORIGINATION TRUST I
TABLE OF CONTENTS
Page
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SECTION 1. Definitions..................................................... 1
SECTION 2. Assignment; Contribution........................................ 2
SECTION 3. Conditions Precedent to Initial Assignment by Charter........... 3
SECTION 4. Representations, Warranties and Covenants....................... 6
SECTION 5. Repurchase or Substitution of Ineligible Bond................... 8
SECTION 6. Events of Termination........................................... 9
SECTION 7. Servicing of Loan Documents..................................... 10
SECTION 8. No Assumption................................................... 10
SECTION 9. Further Assurances.............................................. 10
SECTION 10. Amendments, etc................................................. 11
SECTION 11. Notices......................................................... 11
SECTION 12. No Waiver; Remedies and Severability............................ 12
SECTION 13. Binding Effect; Assignability; Acknowledgments.................. 13
SECTION 14. GOVERNING LAW................................................... 15
SECTION 15. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL................... 15
SECTION 16. Costs, Expenses and Taxes....................................... 15
SECTION 17. Counterparts.................................................... 16
SECTION 18. Captions........................................................ 16
SECTION 19. Notice of Limitation of Liability............................... 16
CONTRIBUTION AGREEMENT (the "Agreement"), dated as of May 21,
1998, by and between CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY, a Delaware
business trust ("Charter"), and CHARTER MAC ORIGINATION TRUST I, a Delaware
business trust (the "Origination Trust").
WHEREAS, Charter wishes to sell, assign, transfer and contribute
to the Origination Trust certain Assigned Assets (as hereinafter defined),
including certain Bonds and related Bond Collateral (each as hereinafter
defined), now or from time to time hereafter owned by Charter, and the
Origination Trust is willing, on the terms and subject to the conditions
contained in this Agreement, to acquire and accept the assignment, transfer and
contribution of such Assigned Assets from Charter;
NOW, THEREFORE, in consideration of the premises and of the
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
SECTION 2. Definitions. (a) For all purposes of this Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
given to such terms in Appendix A hereto which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
(b) All defined terms in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified, consolidated, continued, extended or supplemented and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
SECTION 3. Assignment; Contribution. (a) On the terms and
conditions hereinafter set forth and without recourse (except to the extent as
is specifically provided herein), Charter, from time to time during the period
from the date hereof to the Facility Termination Date, hereby agrees to sell,
assign, transfer and contribute (collectively, "Assign") to the Origination
Trust, and the Origination Trust hereby agrees to acquire and accept the
assignment, transfer and contribution from Charter (each such sale, assignment,
transfer and contribution, an "Assignment"), all of Charter's right, title and
interest in, to and under (i) the Bonds identified on the Bond Schedule attached
hereto as Exhibit A, as the same may be supplemented from time to time by
Charter; (ii) all Bond Collateral relating to the Bonds; (iii) all monies and
other property of any kind that relate to any of the Bonds and that are now or
at any time or times hereafter in the possession or under the control of
Charter, the Servicer, or any bailee of the Servicer, and all monies, including
monies not yet received, that represent payments of Bond Interest due from May
15, 1998; (iv) all books and records of Charter to the extent pertaining to any
of (i) through (iii) above, including all computer programs, disks, tapes and
related electronic data processing media, credit files, account cards, payment
records, correspondence and ledgers in which any of the foregoing are reflected
or maintained; (v) the present and continuing exclusive right, power and
authority, subject to the provisions of the Servicing Agreement, to give and
receive notices and other communications, to make waivers or other agreements,
to make claims for and demand performance on, under or pursuant to any of the
Bonds or the Bond Collateral, to bring actions and proceedings thereunder or for
the enforcement of the Bonds or the Bond Collateral, and to exercise all
remedies, powers, privileges and options and to take any and all actions which
Charter is or may become entitled to take under the Bonds or the Bond
Collateral; (vi) any and all property of every name and nature, now or hereafter
transferred, mortgaged, pledged or assigned as security or additional security
for payment or performance of any obligation of the Bond Issuers and/or Bond
Obligors to Charter under the Bonds or any of the Bond Collateral, and the
liabilities, obligations and indebtedness evidenced thereby or reflected
therein; and (vii) all income, revenues, issues, products, revisions,
substitutions, replacements, profits and proceeds of and from all of the
foregoing (collectively, the "Assigned Assets").
(b) In consideration for the Assignment of the Assigned
Assets hereunder, the Origination Trust shall issue and deliver to Charter the
shares representing beneficial interests in the Origination Trust and shall pay
Charter the Cash Consideration, if any, relating to the Assigned Bonds and Bond
Collateral as specified on the Bond Schedule. The Origination Trust Certificate
shall be issued and delivered to Charter on the initial Closing Date. The Cash
Consideration with respect to each Bond and related Bond Collateral and Assigned
Assets shall be payable on the Closing Date relating to such Bond and related
Bond Collateral
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and Assigned Assets. On each Closing Date, the Origination Trust shall, upon
satisfaction of the applicable conditions set forth in Section 3, make available
to Charter the Cash Consideration, in cash in same day funds. To the extent any
Bond and related Bond Collateral and Assigned Assets have any value in excess of
the Cash Consideration therefor, such value shall be deemed a contribution by
Charter to the capital of the Origination Trust as of the related Closing Date.
(c) Charter and the Origination Trust hereby confirm
their intent and agree that, by the Assignment of the Assigned Assets hereunder,
Charter is selling, assigning, transferring and contributing the Assigned Assets
absolutely and irrevocably and not as collateral or security. If,
notwithstanding the parties' intent to effect an absolute sale, assignment,
transfer and contribution, the transactions contemplated hereby are
characterized as a financing, Charter hereby grants the Origination Trust a
security interest in the Assigned Assets and this Agreement shall be deemed a
security agreement, within the meaning of the Uniform Commercial Code, which (or
a copy hereof) the Origination Trust may file in any applicable filing office.
Each of Charter and the Origination Trust hereby agrees to treat each Assignment
as a sale and contribution for tax, reporting and accounting purposes (except to
the extent that such assignment is not recognized due to the reporting of taxes
on a consolidated basis where applicable and the application of consolidated
financial reporting principles under GAAP). Charter agrees to respond to any
inquiries with respect to any Assignment hereunder by confirming the sale,
assignment, transfer and contribution of the Assigned Assets to the Origination
Trust, and to note on its financial statements that such Assigned Assets have
been sold and/or contributed to the Origination Trust.
(d) Charter hereby agrees to protect and defend the
Origination Trust's interest in the Assigned Assets, and each of Charter and the
Origination Trust hereby agree, at any time and from time to time, to obtain,
procure, execute, deliver, affix and file all such further agreements, bills of
sale and assignments, instruments, documents, receipts, notices, statements,
powers, writings and information, and to do and cause to be done all such
further acts and things as the other party may reasonably request in connection
herewith.
SECTION 4. Conditions Precedent to Initial Assignment by Charter.
(a) The initial Assignment of Bonds and related Bond Collateral and Assigned
Assets by Charter hereunder is subject to the conditions precedent that each
Transaction Party shall have received on or before the Initial Closing Date the
following, each (unless otherwise indicated) dated as of the Initial Closing
Date, in form and substance satisfactory to each Transaction Party:
(i) Certified copies of the resolutions of the
Managing Trustees of Charter authorizing the execution, delivery and performance
of this Agreement and the other Transaction Documents to which it is a party,
and certified copies of all documents evidencing other necessary corporate
action and Governmental Approvals, if any, with respect to this Agreement and
the other Transaction Documents and the transactions contemplated thereby;
(ii) A certificate of the Managing Trustees of
Charter certifying the names, offices and true signatures of the Persons
authorized on behalf of Charter to sign this
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Agreement and the other documents to be delivered by Charter hereunder;
(iii) Copies of all organizational documents of
Charter, certified by an Authorized Representative of Charter;
(iv) Copies of officially certified documents,
dated not more than 30 days prior to the Initial Closing Date, evidencing the
due organization and good standing of Charter under the laws of the State of
Delaware;
(v) Executed financing statements, in form
suitable for filing, naming Charter as the debtor and the Origination Trust as
the secured party, or other similar instruments or documents, as the Origination
Trust may deem necessary or desirable under the UCC of all appropriate
jurisdictions or other applicable law to perfect the Origination Trust's
ownership of and security interest in the Assigned Assets;
(vi) Evidence of the filing of, or duly executed
in form suitable for filing, proper financing statements, if any, necessary (x)
to release all Liens or (y) to subordinate all security interests which do not
constitute Liens, in each case, of any Person in the Assigned Assets previously
granted by Charter;
(vii) A favorable opinion of Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, counsel for Charter, substantially in the form
of Exhibit B hereto, and as to such other matters as any Transaction Party may
reasonably request;
(viii) Evidence that each Bond Trustee has been
notified to remit all payments in respect of the Bonds and the Bond Collateral
to the Administrative Agent;
(ix) Evidence that the Administrative Agent has
been notified of the Assignment of the Assigned Assets to the Origination Trust;
and
(x) Complete copies of each Transaction Document,
certified by Charter (as to Charter and the Charter Entities) to be true and
complete and in full force and effect.
(b) Conditions Precedent to All Assignments. Each
Assignment (including the initial Assignment unless specifically excluded
herein) hereunder shall be subject to the further conditions precedent that:
(i) with respect to any such Assignment, on or
prior to the Closing Date, Charter shall have delivered to each Transaction
Party a Bond Schedule identifying the Bonds to be included in such Assignment
and otherwise containing complete and accurate information relating to the Bonds
as of such Closing Date; provided that for each Assignment after but excluding
the initial Assignment, the delivery of the Bond Schedule to each Transaction
Party shall occur at least 16 calendar days prior to the date of the Assignment;
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(ii) Charter shall have delivered unqualified
opinions of bond counsel to the effect that interest payable on the Bonds is
excludable from gross income tax for purposes of federal income taxation under
the Code, based on customary assumptions;
(iii) Charter shall have marked its master data
processing records, stating that Charter's interest in the Bonds and related
Bond Collateral and other Assigned Assets have been Assigned in accordance with
this Agreement;
(iv) Charter shall have delivered each Bond,
together with a duly executed bond power attached thereto, endorsed in blank, or
such other necessary instruments of transfer or assignment, and originals or
copies of each material Bond Document related thereto to the Administrative
Agent (as designee of the Origination Trust);
(v) on the Closing Date the following statements
shall be true (and Charter, by accepting the Cash Consideration on such Closing
Date, shall be deemed to have certified that):
A. The representations and warranties of
Charter contained in Section 4 hereof and in each Transaction Document are
correct on and as of such Closing Date as though made on and as of such date;
and
B. No event has occurred and is continuing,
or would result from such Assignment, that constitutes, or would constitute, an
Event of Termination; and
(vi) The Origination Trust shall have received
such other approvals, opinions or documents as any Transaction Party may
reasonably request; and
(vii) The Surety Provider shall have approved the
Assignment pursuant to Section 4.03 of the Insurance Agreement.
SECTION 5. Representations, Warranties and Covenants: (a) Each of
Charter and the Origination Trust represents and warrants to the other, as of
each Closing Date, (i) it is duly organized, validly existing and in good
standing in the jurisdiction of its organization (and with respect to Charter,
its principal place of business and chief executive office is in the State of
New York), (ii) it has all requisite power and authority to (A) own its
properties, (B) carry on its business as now conducted and proposed to be
conducted, and (C) execute and deliver this Agreement and each of the other
Transaction Documents to which it is a party and to perform its obligations
hereunder and thereunder in accordance with their respective terms, (iii)
neither the execution and delivery of this Agreement and each of the other
Transaction Documents to which it is a party, nor the performance of its
obligations hereunder or thereunder, will (A) conflict with or result in a
breach or default under any of its organizational documents, any Applicable Laws
or any contract, agreement, mortgage, instrument or other undertaking to which
it is a party or by which any of its properties is subject or (B) result in the
creation or imposition of any Lien, other
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than pursuant to the Transaction Documents, (iv) it has obtained any
Governmental Approval required for the execution, delivery and performance by it
of this Agreement and each of the other Transaction Documents to which it is a
party, (v) there is no action, suit or proceeding pending against it in any
court or by or before any Governmental Authority which would materially affect
its ability to carry out the transactions contemplated by this Agreement or any
of the other Transaction Documents to which it is a party, (vi) the execution,
delivery and performance by it of this Agreement and each of the other
Transaction Documents to which it is a party, have been duly authorized by all
necessary corporate or other action on its part, (vii) this Agreement and each
of the other Transaction Documents to which it is a party have been duly
executed and delivered by it and constitute its legal, valid and binding
obligations enforceable against it in accordance with their respective terms,
(viii) all of the representations and warranties made by it in any other
Transaction Document were true and correct when made and are true and correct as
of the Closing Date and are hereby made by it as if the same were set forth in
full in this Agreement, (ix) the execution and delivery of this Agreement and
each of the other Transaction Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby were not made
(A) in contemplation of the insolvency of any Person, (B) with the intent to
hinder, delay or defraud any Person, any creditor of any Person or any federal
banking agency, (C) after the commission of any act of insolvency by any Person
or (D) without fair consideration; and (x) its assets or capital are not
unreasonably small in value in relation to its business, and its remaining
assets or capital will not be unreasonably small in value in relation to and
after giving effect to the consummation of the transactions contemplated hereby
or by the other Transaction Documents to which it is a party; it is not
insolvent at the time of, and will not be rendered insolvent by virtue of, the
consummation of the transactions contemplated hereby or by the other Transaction
Documents to which it is a party; by consummating the transactions contemplated
hereby or by the other Transaction Documents to which it is a party, it does not
intend to, or believe that it will, incur debts beyond its ability to pay such
debts as they become due.
(b) Charter hereby represents, warrants and covenants to
the Origination Trust as follows:
(i) The information pertaining to the Bonds set
forth in the Bond Schedule is true and correct in all material respects at the
date or dates respecting which such information was furnished.
(ii) Immediately prior to the Assignment of the
Assigned Assets pursuant hereto, Charter was the sole legal and beneficial owner
of such Assigned Assets and had good and marketable title thereto, free and
clear of any Lien or participation or ownership interest in favor of any other
Person, and the form of this Agreement and the related instruments of transfer
or assignment are in form sufficient to transfer all right, title and interest
of Charter in the Assigned Assets to the Origination Trust. The Assignment of
the Assigned Assets by Charter to the Origination Trust constitutes a valid and
enforceable sale, assignment, transfer and contribution of the Assigned Assets
to the Origination Trust, enforceable against creditors of, and purchasers from,
Charter. Upon the Assignment of the Assigned Assets
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hereunder, Charter has no remaining interest in any Assigned Asset. Charter has
given or caused to be given all notices legally necessary to be given by Charter
to effect the sale of the Assigned Assets pursuant hereto. Charter has obtained
any and all consents required for Charter to convey to the Origination Trust all
right, title and interest in the Assigned Assets.
(iii) Each Bond has been duly authorized and
validly issued by the related Bond Issuer and is a valid and binding obligation
of such Bond Issuer, and an unqualified opinion of bond counsel to such effect
was rendered at the time the Bonds were issued. Each Bond and related Bond
Document is genuine, has not been impaired, altered or modified in any respect
and is the legal, valid and binding obligation of the maker thereof, enforceable
in accordance with its terms (except as such enforceability may be limited by
Bankruptcy Law and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law), and is
not subject to any dispute, right of setoff, counterclaim or defense of any
kind.
(iv) Each Bond and related Bond Document contains
customary and enforceable provisions so as to render the rights and remedies of
the holder thereof adequate for the practical realization against the related
Bond Collateral of the benefits of the security interests intended to be
provided thereby, including by judicial foreclosure. There is no exemption under
existing law available to the related Bond Issuer and/or any Bond Obligor which
would interfere with the right of Charter or any assignee to foreclose or
realize upon such Bond and related Bond Documents, other than which may be
available under applicable Bankruptcy Law, debt relief or homestead statutes.
(v) Charter has not taken (or omitted to take),
and has no notice that the related Bond Issuer and/or any Bond Obligor has taken
(or omitted to take), any action that would impair or invalidate the coverage
provided by any existing insurance policy relating to any Property or prevent
the Origination Trust or any assignee from enforcing the provisions of any Bond
or related Bond Documents.
(vi) As of the Closing Date relating to a Bond,
the Bond is not currently delinquent or in default, and Charter has not waived
any material default, breach, violation or event of acceleration, and to
Charter's knowledge, no Bond Issuer and/or any Bond Obligor is currently in
default in complying with the terms of its Bond Documents.
(vii) To Charter's knowledge, after having
conducted reasonable investigation with due diligence, as of the Closing Date
relating to a Bond, (i) the Bond Obligor and the Bond Issuer are in compliance
with any covenants that they have agreed to satisfy in order for the interest
payable on the Bond to be excludable from gross income for purposes of federal
income taxation, (ii) there exists no reason why such interest would not be
excludable from gross income for purposes of federal income taxation, (iii) the
amount paid to obtain credit enhancement with respect to the Bonds from the
Surety Provider is reasonable and customary, and (iv) it is reasonably expected
that the Bond Obligor, rather than the Surety Provider, will pay debt service on
the Bonds.
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(viii) The Assignment of the Assigned Assets by
Charter pursuant to this Agreement is not subject to the bulk transfer laws or
any similar statutory provisions in effect in any applicable jurisdiction.
(ix) As of the Closing Date relating to a Bond,
the Bond is not subject to a bankruptcy plan.
(x) Charter has caused all of its records to be
marked to indicate that the Assigned Assets have been Assigned by Charter to the
Origination Trust.
(xi) To Charter's knowledge, there exists no
violation of any Environmental Laws with respect to any Property.
(xii) No Bond will be deposited with market
discount in excess of a de minimis amount within the meaning of Section
1278(a)(2)(C) of the Internal Revenue Code.
For purposes of the representations made herein, the phrase "to
the best knowledge of Charter" or "to Charter's knowledge" means to the actual
knowledge of Charter after reasonable inquiry.
SECTION 5. Repurchase or Substitution of Ineligible Bond. (a) If
any of the representations or warranties of Charter contained in Section 4(b)
hereof shall prove to be, in any material and adverse respect, false, incorrect
or misleading (a "Breached Representation") as to any Bond (each an "Ineligible
Bond"), Charter, at its expense, shall use commercially reasonable efforts to
cause such Breached Representation to be, in all material respects, true,
correct and not misleading. Failure by Charter to cure a Breached Representation
shall not create an Event of Default. Charter agrees promptly to notify the
Origination Trust and the Administrative Agent if Charter discovers that any
Bond is an Ineligible Bond.
(b) Charter hereby grants the Origination Trust the
option (the "Repurchase Option"), exercisable by the Origination Trust at any
time on and after occurrence of, and during the continuance of, an Event of
Default under the Insurance Agreement, to require Charter to repurchase the
applicable Ineligible Bond for a purchase price equal to the outstanding
principal amount of the Ineligible Bond at the date of repurchase, plus accrued
and unpaid interest to the date of repurchase (the "Repurchase Price"). Charter
agrees to repurchase the applicable Ineligible Bond within 60 days of the
exercise of the Repurchase Option by the Origination Trust. The Repurchase
Option may be exercised by the Origination Trust by delivery to Charter of a
notice of election to exercise the Repurchase Option. In lieu of repurchasing an
Ineligible Bond, Charter may, with the consent of the Controlling Person, assign
to the Origination Trust a Bond (a "Substituted Bond") in substitution for such
Ineligible Bond. Charter agrees to promptly notify the Administrative Agent if
the Origination Trust exercises the Repurchase Option or if a Substituted Bond
is Assigned to the Origination Trust.
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SECTION 6. Events of Termination. If any of the following events
(each an "Event of Termination") shall occur and be continuing:
(a) The occurrence of an Event of Default (as such term
is defined in each Transaction Document) under any Transaction Document; or
(b) Any representation or warranty made by Charter in
Section 4(a) hereof or in any Transaction Document, or any information or report
delivered by Charter pursuant to this Agreement or any Transaction Document
shall prove to have been incorrect or untrue in any material respect when made
or deemed made or delivered; or
(c) Charter shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed and any such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to Charter by the Origination
Trust; or
(d) Charter or any of its subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
Charter or any of its subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
Bankruptcy Law, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or Charter or any of its subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection (d);
or
(e) There shall have occurred any Material Adverse
Change with respect to Charter since the date of this Agreement; or
(f) The Facility Termination Date;
then, and in any such event, the Origination Trust shall, by notice to Charter
and the Administrative Agent, declare the Contribution Termination Date to have
occurred (in which case the Contribution Termination Date shall be deemed to
have occurred); provided that automatically upon the occurrence of any event
(without any requirement for the passage of time or the giving of notice)
described in paragraph (d) of this Section 6, the Contribution Termination Date
shall occur. Upon any such declaration or designation or upon such automatic
termination, Charter shall have no further right to sell and contribute Assigned
Assets to the Origination
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Trust.
SECTION 7. Servicing of Loan Documents. Consistent with the
Origination Trust's ownership of all Assigned Assets, and subject to the terms
of the Servicing Agreement and the rights of the Servicer thereunder, the
Origination Trust shall have the sole right to service, manage and administer
all Assigned Assets, to assign such right, and to delegate such right to others.
Charter agrees to cooperate fully with the Servicer, the Origination Trust and
any assignee of the Origination Trust in the exercise of such rights.
SECTION 8. No Assumption. The Assignments of the Assigned Assets
from Charter to the Origination Trust do not constitute and are not intended to
result in a creation or an assumption by the Origination Trust of any pecuniary
or financial liability, debt or obligation of Charter or any other Person in
connection with the Assigned Assets or under the related Bond Documents or any
other agreement or instrument relating thereto. No such obligation or liability
is intended to be assumed by the Origination Trust hereunder, and any such
assumption is expressly disclaimed.
SECTION 9. Further Assurances. Upon the request of the Origination
Trust, Charter shall, at its expense, promptly execute and deliver all further
instruments and documents, and take all further action (including, without
limitation, the execution and filing of such financing or continuation
statements, or amendments thereto or assignments thereof), that may be necessary
or desirable, or that the Origination Trust may reasonably request, as are
necessary to (a) effect or evidence the Assignment of the Assigned Assets
hereunder, (b) perfect and protect any security interest granted or purported to
be granted under any Bond Document and (c) perfect and protect any ownership or
security interest granted or purported to be granted to the Origination Trust
hereunder or (d) to enable the Origination Trust to exercise and enforce its
rights and remedies hereunder with respect to any Assigned Assets. Charter
hereby authorizes the Origination Trust to file one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any part of the Assigned Assets now existing or hereafter
arising without the signature of Charter where permitted by law.
SECTION 10. Amendments, etc. No amendment, waiver or modification
of any provision of this Agreement, nor any consent hereunder, shall in any
event be effective unless in writing and signed by each of the parties hereto.
Any waiver or consent hereunder shall be effective only in the specific instance
and for the specific purpose for which given. This Agreement, together with the
other Transaction Documents, contains a final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement (together with the exhibits
hereto) among the parties hereto with respect to the subject matter hereof,
superseding all prior oral or written understandings. Notice of any amendment
hereto shall be given to the Administrative Agent.
SECTION 11. Notices. Except to the extent otherwise expressly
provided herein, all notices, requests, and demands to or upon the respective
parties hereto to be effective shall be in writing (and if sent by mail,
certified or registered, return receipt requested) or facsimile
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transmission and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three business days
after being deposited in the mail, postage prepaid, or, in the case of facsimile
transmission, when sent, addressed as follows:
If to Charter:
--------------
Charter Municipal Mortgage Acceptance Company
c/o Related Charter LP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to
Attention: Xxxxx Xxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Origination Trust:
----------------------------
Charter MAC Origination Trust I
c/o Related Charter LP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to
Attention: Xxxxx Xxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Administrative Agent:
-------------------------------
First Tennessee Bank National Association
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
SECTION 12. No Waiver; Remedies and Severability. No failure on
the part of the Origination Trust to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. No failure on the
part of the Origination Trust or any other Person to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor will any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. The
parties hereto further agree that the holding by any court of competent
jurisdiction that any remedy pursued by the parties hereto and hereunder is
unavailable or unenforceable will not affect in any way the ability of such
parties to pursue any other remedy available to them. In the event any provision
of this Agreement shall be held to be invalid or unenforceable by any court of
competent jurisdiction, such provision shall be ineffective only to the extent
of such invalidity or unenforceability, without invalidating the remainder of
such provision or any other provisions of this Agreement.
SECTION 13. Binding Effect; Assignability; Acknowledgments. (a)
This Agreement shall be binding upon Charter, the Origination Trust and their
respective successors and assigns (which successors and assigns shall include a
trustee in bankruptcy), and shall inure to the benefit of each such Person and
each of their respective successors and assigns. Charter may not assign or
delegate any of its rights or obligations hereunder or any interest herein
without the prior written consent of the Origination Trust. Charter will give
notice of any such assignment or delegation to the Administrative Agent.
(b) Each of the parties hereto hereby acknowledges that,
without the prior consent of Charter, the Origination Trust may further assign
the Assigned Assets and all or any portion of its rights under this Agreement,
and any assignee of the Origination Trust may (except as otherwise agreed to by
such assignees) further assign the Assigned Assets and their rights under this
Agreement, and Charter hereby consents to any such assignments. All such
assignees shall be third-party beneficiaries of, and shall be entitled to
enforce the Origination Trust's rights and remedies under, this Agreement to the
same extent as if they were parties thereto, except to the extent specifically
limited under the terms of their assignment.
(c) Charter hereby agrees and acknowledges that the
Origination Trust is on the Initial Closing Date including the Assigned Assets
and this Agreement in the Trust Estate of the Owner Trust, and that each of the
parties to the Transaction Documents have relied and will continue to rely upon
each of the foregoing representations and warranties, and further agrees that
such Persons are entitled to so rely thereon.
(d) Without limiting the foregoing, Charter hereby
acknowledges that, as provided in the Transaction Documents, all of the
Origination Trust's rights, remedies, powers
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and privileges, and all claims of the Origination Trust against Charter, under
or with respect to this Agreement and the other Transaction Documents (whether
arising pursuant to the terms of this Agreement or otherwise available at law or
in equity), including, without limitation, (i) the right to determine whether or
not a Event of Termination has occurred and is continuing, (ii) the right of the
Origination Trust, at any time, to receive all notices hereunder and to enforce
this Agreement against Charter and the obligations of Charter hereunder, (iii)
the right to appoint a successor to the Servicer at the times and upon the
conditions set forth in the Servicing Agreement, and (iv) the right, at any
time, to give or withhold any and all consents, requests, notices, directions,
approvals, demands, extensions or waivers under or with respect to this
Agreement, any other Transaction Documents or any obligations of Charter
hereunder and thereunder, may be exercised and/or enforced by the other
Transaction Parties to the same extent as the Origination Trust may do. Charter
acknowledges and agrees that such parties are third- party beneficiaries of this
Agreement and the other Transaction Documents to which Charter is a party, and
may rely on Charter's representations, warranties, covenants and indemnities
made herein and therein as if made directly to them.
(e) Charter hereby agrees (i) to execute all agreements,
instruments and documents, and to take all other action, that the Origination
Trust, or any other Transaction Party, reasonably determines is necessary or
appropriate to evidence its consent described in paragraph (b) above and (ii) to
give to the other Transaction Parties, at the time and in the manner given to
the Origination Trust, copies of all notices, consents, requests and other
writings to be given to the Origination Trust by Charter under this Agreement.
To the extent that Charter has granted the Origination Trust any powers of
attorney under this Agreement, Charter agrees that the other Transaction Parties
may exercise all such powers of attorney on behalf of the Origination Trust as
provided in the Transaction Documents and Charter agrees to cooperate fully with
the other Transaction Parties in the exercise of such rights.
(f) This Agreement (including, without limitation, the
representations, warranties and covenants contained in Section 4) shall survive
the sale and contribution of the Assigned Assets hereunder and shall constitute
the continuing obligations of the parties hereto in accordance with its terms,
and shall remain in full force and effect until such time, after the Facility
Termination Date, as the Final Distribution Date shall occur. Without limiting
the foregoing, (i) the rights and remedies of Section 5 with respect to any
breach of any representations, warranties or covenants made by Charter shall be
continuing and shall survive the occurrence of the Facility Termination Date and
any termination of this Agreement, and (ii) that to the extent that a payment,
transfer or deposit is made by or on behalf of Charter to the Origination Trust
which payment, transfer or deposit (or any part thereof) is subsequently
invalidated, declared to be fraudulent or preferential or set aside and required
to be repaid to any of Charter or its respective estate, trustee or receiver or
any other Person, under any Bankruptcy Law, state or federal law, common law or
equitable cause, then to the extent of such repayment, all rights and
obligations of the parties hereunder in respect of such payment, transfer or
deposit shall be reinstated and continued in full force and effect as if such
initial payment, transfer or deposit had never been made.
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The Origination Trust, its successors and assigns hereby
acknowledge that Charter is selling, assigning, conveying, transferring and
delivering the Assigned Assets without recourse (except to the extent as is
specifically provided herein), and, except as expressly set forth above, without
representation or warranty of any kind or description.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THE
PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT
IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT
AGAINST IT AND TO OR IN CONNECTION WITH ANY OF THE TRANSACTION DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREUNDER OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD OR
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN
SUCH FEDERAL COURT. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY WAIVE AND
AGREE NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, THEREBY OR BY THE OWNER TRUST
AGREEMENT AND THE CERTIFICATE ISSUER TRUST AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
SECTION 16. Costs, Expenses and Taxes. (a) Charter agrees to pay
on demand all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic auditing and any
requested amendments, waivers or consents) of this Agreement and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for any Transaction Party
with respect thereto and with respect to advising any Transaction Party as to
their rights and remedies under this Agreement, and the other agreements
executed pursuant hereto and all costs and expenses, if any (including
reasonable counsel fees and expenses), in connection with the
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enforcement of this Agreement and the other agreements and documents to be
delivered hereunder.
(b) In addition, Charter shall pay any and all stamp,
sales, excise and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Agreement
or the other agreements and documents to be delivered hereunder, and agrees to
indemnify the Origination Trust and its assignees against any liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees.
SECTION 17. Counterparts. This Agreement may be executed in any
number of separate counterparts by the parties hereto and each counterpart when
so executed shall be deemed to be an original and all such counterparts when
taken together shall constitute one and the same agreement.
SECTION 18. Captions. The various captions (including, without
limitation, the table of contents) in this Agreement are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
SECTION 19. Notice of Limitation of Liability. Pursuant to Section
10.6 of the Origination Trust Agreement, all Persons with whom the Origination
Trust does business are on notice that the Shareholders, the Trustees, and the
Manager (each as defined in the Origination Trust Agreement) are not liable for
the Origination Trust's obligations, and all persons shall look solely to the
assets of the Origination Trust for payment. The Origination Trust is a business
trust created under the Trust Act; but the Board of Trustees or Manager shall
not be liable for failure to give notice to such Persons, and any failure to
give such notice shall not imply that the Shareholders, the Managing Trustees,
the Manager, and the Registered Trustee are liable for the Trust's obligations.
[Signature page to follow]
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IN WITNESS WHEREOF, Charter and the Origination Trust have duly
executed this Agreement as of the date first written above.
CHARTER MUNICIPAL MORTGAGE
ACCEPTANCE COMPANY
By: RELATED CHARTER LP, its Manager
By: RELATED CHARTER LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: President & COO
-----------------------------
CHARTER MAC ORIGINATION TRUST I
By: RELATED CHARTER LP, its Manager
By: RELATED CHARTER LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: President & COO
-----------------------------
EXHIBIT A
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BOND SCHEDULE
