Exhibit 10(q)
MORTGAGE NOTE TRANSFER AND CONTRIBUTION AGREEMENT
Dated as of September 10, 1997
This Mortgage Note Transfer and Contribution Agreement (the
"Agreement") dated as of September 10, 1997, is among Main Place Real Estate
Investment Trust (the "REIT"), and Main Place Holdings Corporation, a Delaware
corporation ("Holdings").
WITNESSETH THAT:
WHEREAS, Holdings owns the residential mortgage loans identified on
Exhibit A hereto (the "Mortgage Notes");
WHEREAS, Holdings desires to transfer legal title to the Mortgage
Notes to the REIT pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
promises hereinafter contained, it is mutually covenanted and agreed as follows:
1. Contribution of Mortgage Notes. Holdings does hereby transfer,
assign, set over and otherwise convey to the REIT all of its right, title and
interest in and to the Mortgage Notes, including all interest and principal
received or receivable by it on or with respect to the Mortgage Notes after the
date of this Agreement, together with all of its right, title and interest in
and to the proceeds of any related title, hazard, private mortgage or other
insurance policies.
Terms used without definition herein shall have the respective
meanings assigned to them in the Indenture of Trust dated as of July 18 1995
(the "Indenture"), between the Issuer and First Trust National Association, as
trustee (the "Trustee"), relating to the issuance by the Issuer of its Mortgage-
Backed Bonds, Series 1995-1 Due 1998.
3. Representations and Warranties. Holdings hereby represents and
warrants to the REIT as of the date of this Agreement (unless otherwise
indicated) that:
(i) the information set forth with respect to the Mortgage Notes
in Exhibit A hereto is true and correct in all material respects at
the date or dates respecting which such information is furnished as
specified therein;
(ii) Holdings is the sole owner and holder of each Mortgage Note,
free and clear of any and all liens, pledges, charges or security
interests of any nature and has full right and authority to sell and
assign the same;
(iii) each Mortgage Note is either an Eligible Adjustable-
Rate Mortgage Note or an Eligible Fixed-Rate Mortgage Note, as
applicable, and all of the Mortgage Notes, individually and
collectively, are Eligible Mortgage Notes;
(iv) to the best of Holdings's knowledge, all taxes, governmental
assessments, insurance premiums, and water, sewer and municipal
charges previously due and owing have been paid, or an escrow of funds
in an amount sufficient to pay for every such item which remains
unpaid has been established to the extent permitted by law; and
Holdings has not advanced funds, directly or indirectly, for the
payment of any amount required by any Mortgage, except for interest
accruing from the date of related Mortgage Note or date of
disbursement of any Mortgage Note proceeds, whichever is later, to the
date which precedes by 30 days the first due date under any related
Mortgage Note;
(v) to the best of Holdings's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of any
Mortgaged Property and any Mortgaged Property is undamaged by water,
fire, earthquake or earth movement, windstorm, flood, tornado or
similar casualty (excluding casualty from the presence of hazardous
wastes or hazardous substances, as to which Holdings makes no
representation), so as to affect adversely the value of any Mortgaged
Property as security for any Mortgage Note or the use for which such
premises were intended;
(vi) each Mortgage Note meets, or is exempt from, applicable
state or federal laws, regulations and other requirements pertaining
to usury, and such Mortgage Note is not usurious; any and all
requirements of any federal, state or local law with respect to the
origination of the Mortgage Notes including, without limitation,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable to
the Mortgage Notes have been complied with;
(vii) each Mortgage Note, related Mortgage and other agreements
executed in connection therewith are genuine, and each is the legal,
valid and binding obligation of the maker thereof, enforceable in
accordance with its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law); and, to the best of Holdings's
knowledge, all parties to each Mortgage Note had legal capacity to
execute each such Mortgage Note and each such Mortgage Note has been
duly and properly executed by the mortgagor;
(viii) the Mortgaged Property securing each Mortgage Note is
insured by an insurer acceptable to FNMA or FHLMC against loss by fire
and such hazards as are covered under a standard extended coverage
endorsement, in an amount which is not less that the lesser of 100% of
the insurable value of the Mortgaged Property and the outstanding
principal balance of the Mortgage Note, but in no event less than the
minimum amount necessary to fully compensate for any damage or loss on
a replacement cost basis; if the Mortgaged Property is a condominium
unit, it is included under the coverage afforded by a blanket policy
for the project; if upon origination of the Mortgage Note, the
improvements on the Mortgaged Property were in an area indemnified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of
(A) the outstanding principal balance of the Mortgage Note, (B) the
full insurable value and (C) the maximum amount of insurance which was
available under the Flood Disaster Protection Act of 1973; and each
Mortgage obligates the mortgagor thereunder to maintain all such
insurance at the mortgagor's cost and expense;
(ix) to the best of Holdings's knowledge, there is no default,
breach, violation or event of acceleration existing under any Mortgage
or the related Mortgage Note and no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of
acceleration; Holdings has not waived any default, breach, violation
or event of acceleration; no foreclosure action is threatened or has
been commenced by Holdings with respect to any Mortgage Note;
(x) each Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including realization by judicial
foreclosure (subject to any limitation arising from any bankruptcy,
insolvency or other law for the relief of debtors), and there is no
homestead or other exemption available to the mortgagor which would
interfere with such right of foreclosure;
(xi) to the best of Holdings's knowledge, no mortgagor is a
debtor in any state or federal bankruptcy or insolvency proceeding;
and
(xii) the aggregate amount of Mortgage Notes being transferred
hereby is $16,018,873.00.
No representations or warranties are made by Holdings as to the
absence or effect of hazardous wastes or hazardous substances on any of the
Mortgaged Properties or on the lien of any Mortgage or with respect to the
absence or effect of fraud in the origination of any Mortgage Note, and any loss
or liability resulting from the presence or effect of such hazardous wastes,
hazardous substances or fraud will be borne solely by the REIT.
4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of North Carolina, without giving
effect to principles of conflicts of law.
5. Counterparts. This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original for all purposes and all
of which constitute, collectively, one Agreement.
IN WITNESS WHEREOF, the REIT and Holdings have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
MAIN PLACE REAL ESTATE INVESTMENT TRUST
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: President
MAIN PLACE HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: President
