CONTRIBUTION AGREEMENT
Dated as of May 21, 1998
Between
CHARTER MAC ORIGINATION TRUST I
and
CHARTER MAC OWNER 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 the Origination Trust ........................................ 4
SECTION 4. Representations, Warranties and Covenants ....................... 6
SECTION 5. Repurchase or Substitution of Ineligible Bond ................... 9
SECTION 6. Events of Termination ........................................... 9
SECTION 7. Servicing of Loan Documents ..................................... 11
SECTION 8. No Assumption ................................................... 11
SECTION 9. Further Assurances .............................................. 11
SECTION 10. Amendments, etc. ................................................ 11
SECTION 11. Notices ......................................................... 12
SECTION 12. No Waiver; Remedies and Severability ............................ 13
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 ....................................... 16
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 MAC ORIGINATION TRUST I, a Delaware business trust (the
"Origination Trust"), and CHARTER MAC OWNER TRUST I, a Delaware business trust
(the "Owner Trust").
WHEREAS, Origination Trust wishes to sell, assign, transfer and
contribute to the Owner 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 the Origination Trust, and
the Owner 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 the Origination Trust;
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), the Origination Trust, 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 Owner
Trust, and the Owner Trust hereby agrees to acquire and accept the assignment,
transfer and contribution from the Origination Trust (each such sale,
assignment, transfer and contribution, an "Assignment"), all of the Origination
Trust'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 the Origination Trust; (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 the Origination Trust, 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
the Origination Trust 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 the Origination
Trust 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 the Origination Trust 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"). In addition, the Origination
Trust assigns to the Owner Trust all rights of the Origination Trust that the
Origination Trust obtained from Charter under the Charter Contribution
Agreement.
(b) In consideration for the Assignment of the Assigned
Assets hereunder, the Owner Trust shall issue and deliver to the Origination
Trust the Residual Certificate representing beneficial interests in the Owner
Trust and shall pay the Origination
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Trust the Cash Consideration, if any, relating to the Assigned Bonds and Bond
Collateral as specified on the Bond Schedule. The Residual Certificate shall be
issued and delivered to the Origination Trust 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 and Assigned Assets. On each Closing Date, the Owner
Trust shall, upon satisfaction of the applicable conditions set forth in Section
3, make available to the Origination Trust 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 the Origination Trust to the capital of the
Owner Trust as of the related Closing Date.
(c) The Origination Trust and the Owner Trust hereby confirm
their intent and agree that, by the Assignment of the Assigned Assets hereunder,
the Origination Trust 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, the Origination Trust hereby grants the Owner
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 Owner Trust may file in any applicable filing
office. Each of the Origination Trust and the Owner 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). The Origination
Trust 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 Owner Trust, and to note on its financial statements that
such Assigned Assets have been sold and/or contributed to the Owner Trust.
(d) The Origination Trust hereby agrees to protect and
defend the Owner Trust's interest in the Assigned Assets, and each of the Owner
Trust 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 the
Origination Trust. (a) The initial Assignment of Bonds and related Bond
Collateral and Assigned Assets by the Origination Trust hereunder is subject to
the conditions precedent that each 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 party:
(i) Certified copies of the resolutions of the
Managing Trustees of the Origination Trust 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
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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 Trustees of the Origination
Trust certifying the names, offices and true signatures of the Persons
authorized on behalf of the Origination Trust to sign this Agreement and the
other documents to be delivered by the Origination Trust hereunder;
(iii) Copies of all organizational documents of the
Origination Trust, certified by an Authorized Representative of the Origination
Trust;
(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 the Origination Trust under the laws of the
State of Delaware;
(v) Executed financing statements, in form suitable
for filing, naming the Origination Trust as the debtor and the Owner Trust as
the secured party, or other similar instruments or documents, as the Owner Trust
may deem necessary or desirable under the UCC of all appropriate jurisdictions
or other applicable law to perfect the Owner 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 the Origination Trust;
(vii) A favorable opinion of Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx & Xxxxxxx, counsel for the Origination Trust, 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 Owner Trust; and
(x) Complete copies of each Transaction Document,
certified by the Origination Trust (as to the Origination Trust) to be true and
complete and in full force and effect.
(b) Conditions Precedent to All Assignments. Each Assignment
(including the initial Assignment) hereunder shall be subject to the further
conditions precedent that:
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(i) with respect to any such Assignment, on or prior
to the Closing Date, the Origination Trust 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;
(ii) the Origination Trust 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) the Origination Trust shall have marked its master
data processing records, stating that the Origination Trust's interest in the
Bonds and related Bond Collateral have been Assigned in accordance with this
Agreement;
(iv) the Origination Trust 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 Owner Trust);
(v) on the Closing Date the following statements shall
be true (and the Origination Trust, by accepting the Cash Consideration on such
Closing Date, shall be deemed to have certified that):
A. The representations and warranties of the
Origination Trust 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 Owner 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
the Origination Trust and the Owner 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, (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
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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 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) the Origination Trust hereby represents, warrants and
covenants to the Owner 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, the Origination Trust was the sole legal and
beneficial owner of such
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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 the
Origination Trust in the Assigned Assets to the Owner Trust. The Assignment of
the Assigned Assets by the Origination Trust to the Owner Trust constitutes a
valid and enforceable sale, assignment, transfer and contribution of the
Assigned Assets to the Owner Trust, enforceable against creditors of, and
purchasers from, the Origination Trust. Upon the Assignment of the Assigned
Assets hereunder, the Origination Trust has no remaining interest in any
Assigned Asset. The Origination Trust has given or caused to be given all
notices legally necessary to be given by the Origination Trust to effect the
sale of the Assigned Assets pursuant hereto. The Origination Trust has obtained
any and all consents required for the Origination Trust to convey to the Owner
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 the Origination Trust 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) The Origination Trust 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 Owner 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 the Origination Trust has
not waived any material default, breach, violation or event of acceleration, and
to the Origination Trust's knowledge, no Bond Issuer and/or any Bond Obligor is
currently in default in complying with the terms of its Bond Documents.
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(vii) To the knowledge of the Origination Trust, 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.
(viii) The Assignment of the Assigned Assets by the
Origination Trust 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) The Origination Trust has caused all of its
records to be marked to indicate that the Assigned Assets have been Assigned by
the Origination Trust to the Owner Trust.
(xi) To the Origination Trust'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 the Origination Trust" or "to the Origination Trust's
knowledge" means to the actual knowledge of the Origination Trust after
reasonable inquiry.
SECTION 5. Repurchase or Substitution of Ineligible Bond. (a) If any
of the representations or warranties of the Origination Trust 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,
making such Bond with respect to which the representation was made an Ineligible
Bond and giving rise to the Repurchase Obligation on the part of Charter
(pursuant to Section 5 of the Charter Contribution Agreement), then the
Origination Trust hereby agrees to repurchase from the Owner Trust such
Ineligible Bond. The Origination Trust agrees to promptly notify the Owner Trust
and the Administrative Agent if the Origination Trust discovers that any Bond is
an Ineligible Bond.
(b) The Origination Trust hereby grants the Owner Trust the
option (the "Repurchase Option"), exercisable by the Owner Trust at any time on
and after occurrence
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of, and during the continuance of, an Event of Default under the Insurance
Agreement, to require the Origination Trust 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"). The Origination
Trust agrees to repurchase the applicable Ineligible Bond within 60 days of the
exercise of the Repurchase Option by the Owner Trust. The Repurchase Option may
be exercised by the Owner Trust by delivery to the Origination Trust of a notice
of election to exercise the Repurchase Option. In lieu of repurchasing an
Ineligible Bond, the Origination Trust may, with the consent of the Controlling
Person, assign to the Owner Trust a Bond (a "Substituted Bond") in substitution
for such Ineligible Bond. The Origination Trust agrees to promptly notify the
Administrative Agent if the Owner Trust exercises the Repurchase Option or if a
Substituted Bond is Assigned to the Owner Trust.
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 the Origination
Trust in Section 4(a) hereof or in any Transaction Document, or any information
or report delivered by the Origination Trust 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) The Origination Trust 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 the Origination Trust
by the Owner Trust; or
(d) The Origination Trust 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
the Origination Trust 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 the Origination Trust or any of its subsidiaries shall
take any corporate action to authorize any of the actions set forth above in
this subsection (d); or
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(e) There shall have occurred any Material Adverse Change
with respect to the Origination Trust since the date of this Agreement; or
(f) The Facility Termination Date;
then, and in any such event, the Owner Trust shall, by notice to the Origination
Trust 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, the Origination Trust shall have no further right to sell and
contribute Assigned Assets to the Owner Trust.
SECTION 7. Servicing of Loan Documents. Consistent with the Owner
Trust's ownership of all Assigned Assets, and subject to the terms of the
Servicing Agreement and the rights of the Servicer thereunder, the Owner 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. The Origination
Trust agrees to cooperate fully with the Servicer, the Owner Trust and any
assignee of the Owner Trust in the exercise of such rights.
SECTION 8. No Assumption. The Assignments of the Assigned Assets
from the Origination Trust to the Owner Trust do not constitute and are not
intended to result in a creation or an assumption by the Owner Trust of any
pecuniary or financial liability, debt or obligation of the Origination Trust 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 Owner Trust hereunder,
and any such assumption is expressly disclaimed.
SECTION 9. Further Assurances. Upon the request of the Owner Trust,
the Origination Trust 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 Owner 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 Owner Trust hereunder or (d)
to enable the Owner Trust to exercise and enforce its rights and remedies
hereunder with respect to any Assigned Assets. The Origination Trust hereby
authorizes the Owner 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 the Origination Trust where permitted by law. Notice of any
amendment hereto shall be given to the Administrative Agent.
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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.
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 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 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 Owner Trust:
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Charter MAC Owner 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
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and to
Attention: Xxxxx Xxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Administrative Agent:
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First Tennessee Bank National Association
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 12. No Waiver; Remedies and Severability. No failure on the
part of the Owner 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
Owner 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 the Origination Trust, the Owner 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. The Origination Trust may not
assign or delegate any of its rights or obligations hereunder or any interest
herein without the prior written consent of the Owner Trust. The Origination
Trust 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 the Origination Trust, the Owner Trust may further
assign the Assigned Assets and all or any portion of its rights under this
Agreement, and any assignee of the Owner Trust
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may (except as otherwise agreed to by such assignees) further assign the
Assigned Assets and their rights under this Agreement, and the Origination Trust
hereby consents to any such assignments. All such assignees shall be third-party
beneficiaries of, and shall be entitled to enforce the Owner 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) The Origination Trust hereby agrees and acknowledges
that the Owner 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, the Origination Trust
hereby acknowledges that, as provided in the Transaction Documents, all of the
Owner Trust's rights, remedies, powers and privileges, and all claims of the
Owner Trust against the Origination Trust, 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 Owner Trust,
at any time, to receive all notices hereunder and to enforce this Agreement
against the Origination Trust and the obligations of the Origination Trust
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 the
Origination Trust hereunder and thereunder, may be exercised and/or enforced by
the other Transaction Parties to the same extent as the Owner Trust may do. The
Origination Trust acknowledges and agrees that such parties are third-party
beneficiaries of this Agreement and the other Transaction Documents to which the
Origination Trust is a party, and may rely on the Origination Trust's
representations, warranties, covenants and indemnities made herein and therein
as if made directly to them.
(e) The Origination Trust hereby agrees (i) to execute all
agreements, instruments and documents, and to take all other action, that the
Owner 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 Owner Trust, copies of all notices, consents, requests and other writings to
be given to the Owner Trust by the Origination Trust under this Agreement. To
the extent that the Origination Trust has granted the Owner Trust any powers of
attorney under this Agreement, the Origination Trust agrees that the other
Transaction Parties may exercise all such powers of attorney on behalf of the
Owner Trust as provided in the Transaction Documents and the Origination Trust
agrees to cooperate fully with the other Transaction Parties in the exercise of
such rights.
(f) This Agreement (including, without limitation, the
representations,
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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 the Origination
Trust 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 the
Origination Trust to the Owner 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 the Origination
Trust 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.
The Owner Trust, its successors and assigns hereby acknowledge that
the Origination Trust 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
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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) The Origination Trust
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 enforcement of
this Agreement and the other agreements and documents to be delivered hereunder.
(b) In addition, the Origination Trust 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 Owner 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 and Section 12.7 of the Owner Trust
Agreement, all suppliers and Persons with whom the Origination Trust and the
Owner Trust do business are on notice that the Shareholders, the Trustees, and
the Manager (each as defined in the Origination Trust Agreement) and the Senior
Holder, Residual Holder, Trustees and Manager (each as defined in the Owner
Trust Agreement) are not liable for the obligations of the Origination Trust or
the Owner Trust, and all suppliers and persons shall look solely to the assets
of the Origination Trust or the Owner Trust, as the case may be, for payment.
The Origination Trust and the Owner Trust are both business trusts created under
the Trust Act; but the Board of Trustees or Manager of neither the
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Origination Trust nor the Owner Trust shall 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 Origination Trust's obligations, nor shall such failure imply
that the Senior Holder, Residual Holder, Managing Trustees, the Manager and the
Registered Trustee are liable for the Owner Trust's obligations.
[Signature page to follow]
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IN WITNESS WHEREOF, the Origination Trust and the Owner Trust have
duly executed this Agreement as of the date first written above.
CHARTER MAC ORIGINATION TRUST I
By: RELATED CHARTER LP, its Manager
By: RELATED CHARTER LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President & COO
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CHARTER MAC OWNER TRUST I
By: RELATED CHARTER LP, its Manager
By: RELATED CHARTER LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President & COO
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EXHIBIT A
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BOND SCHEDULE
