Exhibit 10(b)
MORTGAGE LOAN CONTRIBUTION AGREEMENT
This Mortgage Loan Contribution Agreement, is made this 30th
day of October, 1996 (this "Agreement"), by and between NationsBank of Texas,
N.A., a national banking association (the "Bank"), and Main Place Real Estate
Investment Trust, a Maryland real estate investment trust (the "Trust").
WHEREAS, the Bank owns 50% of the issued and outstanding Class
A Common Shares of Beneficial Interest, par value $1.00 per share (the "Class A
Trust Shares"), of the Trust;
WHEREAS, the Bank owns the residential mortgage loans
identified on Exhibit A hereto (the "Mortgage Loans" and the "Mortgage Loan
Schedule," respectively);
WHEREAS, the Bank desires to contribute the Mortgage Loans to
the Trust in exchange for the issuance by the Trust of 53,786 Class A Trust
Shares (the "Shares") to the Bank upon the terms and conditions hereinafter set
forth; and
WHEREAS, the Trust desires to accept the contribution of the
Mortgage Loans by the Bank and issue the Shares to the Bank in consideration for
such contribution;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Contribution; Issuance of Shares.
(a) The Bank hereby agrees to contribute (the "Contribution")
to the Trust, on November 1, 1996 (the "Closing Date"), subject to the terms and
conditions of this Agreement, all the right, title and interest of the Bank in
and to the Mortgage Loans, including all servicing rights and all interest and
principal due on or with respect to the Mortgage Loans together with all of the
Bank's right, title and interest in and to the proceeds of any related title,
hazard, primary mortgage or other insurance policies (collectively, the
"Contributed Assets"). The Contribution shall be effected pursuant to a Mortgage
Loan Assignment in the form attached hereto as Exhibit B. The closing of the
Contribution shall take place at the offices of Stroock & Stroock & Xxxxx at
10:00 a.m. (eastern standard time) on the Closing Date.
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(b) In consideration of the Contribution by the Bank to the
Trust, the Trust hereby agrees to issue to the Bank, on the Closing Date,
subject to the terms and conditions of this Agreement, the Shares, receipt of
which by the Bank shall be deemed to constitute full and adequate consideration
from the Trust for the Bank's interest in the Contributed Assets to be
contributed by the Bank pursuant to Section 1(a) hereof.
(c) In the event any mortgage loan is or becomes an Ineligible
Mortgage Loan (as defined below), the Bank shall, upon the Trust's request, made
at any time prior to or after the Closing Date, replace such Mortgage Loan with
a substitute Mortgage Loan meeting the selection criteria established by the
Trust in which case the Bank shall cause the Mortgage Loan Schedule to be
amended. The term "Ineligible Mortgage Loan" means a mortgage loan which has any
of the following characteristics as of the Cutoff Date (as hereinafter defined):
(i) the Mortgage Loan is 30 days past due; (ii) a default, breach, violation or
event of acceleration has occurred with respect to the mortgage loan; (iii) a
foreclosure action has been commenced; or (iv) the related mortgagor is a debtor
in a state or federal bankruptcy or insolvency proceeding. On the Closing Date,
the Bank shall deliver the final Mortgage Loan Schedule to the Trust.
(d) The Bank and the Trust hereby agree that the aggregate
book value of the Mortgage Loans at September 30, 1996 (the "Cutoff Date") is
$5,862,502,429.52 and that the aggregate fair market value of the Mortgage Loans
at the Cutoff Date is approximately equal to the aggregate book value thereof.
2. Representations and Warranties of the Bank.
(a) The Bank hereby represents and warrants to the Trust as of
the date hereof and as of Closing Date as follows:
(i) The Bank is a national banking association duly
organized, validly existing and in good standing under the
laws of the United States, with full corporate power and
authority to own its assets and conduct its business, and the
Bank has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated
hereby, including, but not limited to, the power and authority
to convey, assign and transfer the Contributed Assets in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and
delivery of this Agreement by the Trust, this Agreement and
all of the obligations of the Bank hereunder are the legal,
valid and binding obligations of the Bank, enforceable against
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the Bank in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iii) The execution and delivery of this Agreement by
the Bank and the performance of its obligations hereunder will
not conflict with any provision of any law or regulation to
which the Bank is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of any of the Bank's organizational
documents or any agreement or instrument to which the Bank is
a party or by which it is bound, or any order or decree
applicable to the Bank, or result in the creation or
imposition of any lien on any of the Bank's assets or
property, in each case which would materially and adversely
affect the ability of the Bank to carry out the transactions
contemplated by this Agreement;
(iv) There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Bank,
threatened against the Bank in any court or by or before any
other governmental agency or instrumentality which would
materially and adversely affect the value of the Contributed
Assets or the ability of the Bank to carry out the
transactions contemplated by this Agreement;
(v) The Bank is not in default with respect to any
order or decree of any court or any order, regulation or
demand of any federal, state, municipal or governmental
agency, which default might have consequences that would
materially and adversely affect the condition (financial or
other) or operations of the Bank or its properties or might
have consequences that would materially and adversely affect
its performance hereunder;
(vi) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Bank of or
compliance by the Bank with this Agreement or the consummation
of the transactions contemplated by this Agreement, other than
those which have been obtained by the Bank;
(vii) The Bank is acquiring the Shares for its own
account, for investment and not with a view to the sale or
distribution thereof or with any present intention of selling
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or distributing any thereof, except in conformity with the
Securities Act of 1933, as amended (the "Securities Act"). The
Bank understands and acknowledges that the Shares are not
registered under the Securities Act and will not be
transferable except (i) pursuant to an effective registration
statement under the Securities Act, (ii) pursuant to Rule 144
or any successor rule under the Securities Act, (iii) pursuant
to a no-action letter issued by the Securities and Exchange
Commission to the effect that a proposed transfer of the
Shares may be made without registration under the Securities
Act or (iv) pursuant to an opinion of counsel for or
reasonably acceptable to the Trust to the effect that the
proposed transfer is exempt from registration or qualification
under the Securities Act and relevant state securities laws;
and
(viii) The transfer, assignment and conveyance of the
Contributed Assets by the Bank to the Trust is not subject to
bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction.
(b) The Bank hereby represents and warrants with respect to
each Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(i) the information set forth with respect
to the Mortgage Loans is true and correct in all material
respects at the date or dates respecting which such
information is furnished as specified therein;
(ii) the Bank is the sole owner and holder
of each Mortgage Loan, free and clear of any and all liens,
pledges, charges or security interest of any nature and has
full right and authority to transfer and assign the same;
(iii) the Bank 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 Loan or date of disbursement of any Mortgage
Loan proceeds, whichever is later, to the date which precedes
by 30 days the first due date under any related Mortgage Loan;
(iv) the Bank has no knowledge of any
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
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to which the Bank makes no representation), so as to affect
adversely the value of any Mortgaged Property as security for
any Mortgage Loan or the use for which such premises were
intended;
(v) each Mortgage Loan 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
Loans including, without limitation, truth-in-lending, real
estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the
Mortgage Loans have been complied with;
(vi) 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 proceedings in equity or at law); and, to the
best of the Bank'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;
(vii) the Mortgaged Property securing each
Mortgage Note is insured by an insurer against loss by fire
and such hazards as are covered under a standard extended
coverage endorsement, in an amount which is not less than the
lesser of 100% of the insurable value of the Mortgage 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;
(viii) the Bank has no knowledge of any
default, breach, violation or event of acceleration existing
under any Mortgage or the related Mortgage Note or any 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; the Bank
has not waived any default, breach, violation or event of
acceleration; no foreclosure action is threatened or has been
commenced by the Bank with respect to any Mortgage Note;
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(ix) 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; and
(x) the Bank has no knowledge that any
mortgagor is a debtor in any state or federal bankruptcy or
insolvency proceeding.
No representations or warranties are made by the Bank 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 Trust.
3. Notice of Breach: Cure and Repurchase.
(a) The Trust shall give the Bank notice of any breach of any
representation or warranty regarding the Mortgage Loans (a "Breach") or any
defect thereof (a "Defect") that materially and adversely affects the value of
such Mortgage Loan.
(b) Upon notice pursuant to Section 3(a) herein, the Bank
shall, not later than the earlier of 90 days from the Bank's receipt of the
notice or the Bank's discovery of such Breach, cure such Defect or Breach, as
the case may be, in all material respects or reacquire the affected Mortgage
Loan at the applicable Reacquisition Price (as defined below). If the affected
Mortgage Loan is to be reacquired, the Bank shall remit the Reacquisition Price
to the Trust.
The "Reacquisition Price" with respect to any Mortgage Loan to
be reacquired pursuant to this Agreement shall be the book value of any such
Mortgage Loan as of the Cutoff Date.
(c) Upon any reacquisition of a Mortgage Loan contemplated by
this Section 3(b), any servicer of the Mortgage Loans, at the instruction of the
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Trust, shall tender to the Bank or any person designated by the Bank, all
portions of the mortgage file, as such term is defined in the applicable
servicing agreement, and other documents pertaining to such Mortgage Loan
possessed by it, and each document that constitutes a part of the mortgage file
that was endorsed or assigned to the Trust shall be endorsed or assigned, as the
case may be, to the Bank or any person designated by the Bank.
(d) This Section 3 of this Agreement provides the sole remedy
available to the Trust respecting any Defect in a mortgage file or any Breach of
any representation or warranty set forth in or required to be made pursuant to
Section 2 of this Agreement.
4. Representations, Warranties and Agreements of the
Trust.
(a) The Trust hereby represents and warrants to the Bank,
as of the date hereof and as of the Closing Date, as follows:
(i) The Trust is a real estate investment trust duly
organized, validly existing and in good standing under the
laws of the State of Maryland, with full corporate power and
authority to own its assets and conduct its business, and the
Trust has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated
hereby;
(ii) Assuming the due authorization, execution and
delivery of this Agreement by the Trust, this Agreement and
all of the obligations of the Trust hereunder are the legal,
valid and binding obligations of the Trust, enforceable
against the Trust in accordance with the terms of this
Agreement, except as such enforcement may be limited by
bankruptcy, reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(iii) The execution and delivery of this Agreement by
the Trust and the performance of its obligations hereunder
will not conflict with any provision of any law or regulation
to which the Trust is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of any of the Trust's organizational
documents or any agreement or instrument to which the Trust is
a party or by which it is bound, or any order or decree
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applicable to the Trust, or result in the creation or
imposition of any lien on any of the Trust's assets or
property, in each case which would materially and adversely
affect the ability of the Trust to carry out the transactions
contemplated by this Agreement;
(iv) There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Trust,
threatened against the Trust in any court or by or before any
other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement
or any action taken in connection with the obligations of the
Trust contemplated herein, or which would be likely to impair
materially the ability of the Trust to perform under the terms
of this Agreement;
(v) The Trust is not in default with respect to any
order or decree of any court or any order, regulation or
demand of any federal, state, municipal or governmental
agency, which default might have consequences that would
materially and adversely affect the condition (financial or
otherwise) or operations of the Trust or its properties or
might have consequences that would materially and adversely
affect its performance hereunder;
(vi) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Trust of or
compliance by the Trust with this Agreement or the
consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the
Trust; and
(vii) Upon the issuance of the Shares as provided
herein, the Shares will be duly and validly issued, fully paid
and non-assessable. The Shares, when issued and delivered to
the Bank, will not be subject to preemptive rights.
5. Trust's Conditions to Closing.
The obligations of the Trust under this Agreement shall be
subject to the satisfaction, on the Closing Date, of the following conditions:
(a) The obligations of the Bank required to be performed by it
at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Bank under this Agreement shall be true and correct as of the
date hereof and as of the Closing Date, and no event shall have occurred which,
with notice or the passage of time, or both, would constitute a default under
this Agreement.
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(b) The Trust or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Trust and in form and substance satisfactory to the Trust and the Trust's
counsel, duly executed by all signatories other than the Trust as required
pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related
mortgage file, which mortgage files shall be held by the
servicer on behalf of the Trust pursuant to the terms of the
servicing agreement between the Trust and Servicer dated as of
the Closing Date; and
(ii) the final Mortgage Loan Schedule.
(c) The Bank hereby agrees to furnish such other information,
documents, certificates, letters or opinions with respect to the Mortgage Loans
or itself as may be reasonably requested by the Trust in order for the Trust to
perform any of its obligations or satisfy any of the conditions on its part to
be performed or satisfied pursuant to this Agreement.
7. Bank's Conditions to Closing.
The obligations of the Bank under this Agreement shall be
subject to the satisfaction, on the Closing Date, of the following conditions:
(a) The obligations of the Trust required to be performed by
it at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Trust under this Agreement shall be true and correct as of the
date hereof and as of the Closing Date, and no event shall have occurred which,
with notice or the passage of time, or both, would constitute a default under
this Agreement.
(b) The Bank or its designee shall have received a certificate
representing the Shares duly executed by the authorized officers of the Trust.
8. Share Legend. All Shares to be issued to the Bank
pursuant to this Agreement shall be subject to the provisions of this Agreement,
and the certificates representing such Shares shall bear the following legend:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
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"restricted securities" as that term is defined in Rule 144A under the Act. The
Shares may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of the Trust."
9. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to the Trust, will be mailed, hand
delivered, couriered or sent by facsimile transmission to it at 000 Xxxxx Xxxxx
Xxxxxx, 00xx Floor, NC1-007-23-01 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, attention of
Xxxx X. Xxxx, President, fax number (000) 000-0000 or, if sent to the Bank, will
be mailed, hand delivered or sent by facsimile transmission to it c/o
NationsBank Corporation, Legal Department, at 000 Xxxxx Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 attention of Xxxxxx Xxxxx, Esq., fax
number (000)000-0000.
10. Miscellaneous. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided herein. Notwithstanding the immediately
preceding sentence, neither party hereto may assign this Agreement without the
prior written consent of the other party hereto.
11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Bank and the Trust submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive conveyance, assignment and transfer of the Contributed Assets to the
Trust notwithstanding any language to the contrary contained in any endorsement
of any Mortgage Loan.
12. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
13. Further Assurances. The Bank and the Trust agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
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[Signature page follows]
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IN WITNESS WHEREOF, the Trust and the Bank have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
MAIN PLACE REAL ESTATE
INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
[DELIVERED TO THE TRUST]
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EXHIBIT B
MORTGAGE LOAN ASSIGNMENT
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