PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is
made as of the 29 th day of December 2006, by and
among MRC Mortgage Grantor Trust I, a statutory trust formed under
the laws of the State of Delaware ( “Grantor Trust" ),
and MRC Mortgage Investment Trust Cayman Holding I, LTD., a Cayman
Islands exempted company ( “Cayman Co.” ; and
Grantor Trust and Cayman Co. being collectively referred to as
“Assignees” ), on the one hand, and MMA
Construction Finance, LLC, a Maryland limited liability company (
“MMCF” ), and MMA Mortgage Investment
Corporation, a Florida corporation ( “MMIC” ;
and MMCF and MMIC being collectively referred to as
“Assignors” ), on the other hand. Certain
capitalized terms used herein are defined in Article I.
W I
T N E S E T H
:
WHEREAS, Assignors wish to assign
without recourse and at par value and Grantor Trust wishes to
assume all of Assignors’ right, title and interest in and to
a loan portfolio having an aggregate par value of $176,094,180 plus
accrued interest thereon, which is believed by the parties hereto
to be the fair market value thereof;
WHEREAS, Assignors wish to assign and
Cayman Co. wishes to assume all of Assignors’ indebtedness
under the two credit agreements under which one or both Assignors
are debtors and have incurred aggregate indebtedness as of the date
hereof of $100,108,283; and such assignment and assumption is to be
evidenced by the execution and delivery of amended and restated
credit agreements to be dated as of the date hereof;
WHEREAS, the consideration for the
assumption and assignment of the Assigned Agreements (as defined
below) (and reflecting cash or assets previously conveyed to
affiliates of Grantor Trust in the amount of $18,075,991) shall
consist of a promissory note payable to the order of MMCF in the
aggregate principal amount of $86,360,306 plus an amount equal to
the accrued interest on a portion of the loan portfolio, and a
promissory note payable to the order of MMIC in the aggregate
principal amount of $7,701,582 plus an amount equal to the accrued
interest on a portion of the loan portfolio, each made by Grantor
Trust and dated the date hereof (collectively, the “
Promissory Notes ”), and the assumption of the Assumed
Liabilities (as defined below);
WHEREAS, simultaneously therewith and
pursuant to those certain Assignment Agreements dated the date
hereof between MRC Mortgage Investment Trust, formerly known as
Midland Affordable Housing Group Trust and MMA Affordable Housing
Group Trust, a group trust formed under the laws of the State of
Florida ( “Group Trust” ), MMCF and MMIC,
respectively, MMCF and MMIC will each assign to Group Trust their
respective Promissory Notes, and in consideration therefor, Group
Trust and MMCF and MMIC, respectively, will automatically cancel
and make of no further force or effect certain demand notes and
related assignments of mortgage which had previously been issued to
Group Trust by MMCF and MMIC;
WHEREAS, immediately thereafter and
effective as of the date hereof, Group Trust will contribute the
Promissory Notes to Grantor Trust in consideration for all of the
beneficial interest in Grantor Trust;
WHEREAS, immediately thereafter and
effective as of the date hereof, Group Trust will contribute all of
the beneficial interest of Grantor Trust, its wholly-owned
subsidiary, to Cayman Co. in partial consideration of all of the
issued and outstanding shares of Cayman Co.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants, agreements and warranties
herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions . The
following terms shall have the following meanings for the purposes
of this Agreement:
“Agreement” shall
mean this Purchase and Sale Agreement, including all exhibits and
schedules hereto, as it may be amended from time to time.
“Governmental
Authority” shall mean the government of the United States
or any foreign country, any state or political subdivision thereof,
or any entity, body or authority exercising executive, legislative,
judicial, regulatory, administrative or other governmental
functions or any court, department, commission, board, agency,
instrumentality or administrative body of any of the foregoing.
“Law” shall mean
any law, statute, regulation, ordinance, rule, order, decree,
judgment, consent decree, settlement agreement or governmental
requirement enacted, promulgated, or entered into, agreed or
imposed by any Governmental Authority.
“Person” shall
mean any individual, corporation, proprietorship, firm,
partnership, limited partnership, limited liability company, trust,
association, Governmental Authority or other entity.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale .
Subject to the terms and conditions of this Agreement, (a)
Assignors hereby assign and transfer, without recourse, to Grantor
Trust, and Grantor Trust hereby takes assignment of, all of
Assignors’ right, title and interest in and to the loan
portfolio listed on Exhibit A attached hereto,
including without limitation the related loan agreements listed on
Exhibit A attached hereto, and (b) Assignors
hereby assign and transfer to Cayman Co, and Cayman Co. hereby
takes assignment of, the credit agreements listed on
Exhibit B attached hereto (the agreements listed on
Exhibit A and Exhibit B hereto collectively
being referred to as the “Assigned Agreements”
).
2.2 Assumed Liabilities . Each
Assignee hereby assumes, and agrees to pay, perform, fulfill and
discharge, the obligations of Assignors under the applicable
Assigned Agreements (including the indebtedness assumed thereby),
to the extent arising out of, or resulting from, facts, events and
circumstances occurring, or which accrue after the date hereof
(other than due to any failure to comply or breach of any of
Assignors or their affiliates, whether before, on or after the date
hereof);
The obligations of Assignees under
this Section 2.2 shall be referred to collectively as
the “Assumed Liabilities.” Except as
specifically set forth above, Assignee shall not assume or
otherwise be liable in respect of any debt, claim, obligation or
other liability of Assignors whatsoever, including any payable,
debt, tort, violation of Law or breach of any Assigned
Agreements.
2.3 Payment of Purchase Price
. The purchase price for the Purchase and Sale of the Assigned
Agreements shall consist of (a) the delivery on the date
hereof of the Promissory Notes and (b) the assumption of the
Assumed Liabilities, including the assumed indebtedness.
2.4 Assignment of Notes and
Mortgages/Deeds of Trust . The assignment of each promissory
note and mortgage or deed of trust listed on Exhibit A
shall be evidenced by an Endorsement and Assignment of
Mortgage/Deed of Trust substantially in the form attached hereto as
Exhibit C .
2.5 Reporting . The parties
hereto shall take no position inconsistent with the valuation of
the Assigned Agreements set forth in the recitals hereto.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF ASSIGNORS
Each Assignor severally and not
jointly represents and warrants to Assignee, as of the date hereof
as follows:
3.1 Due Organization . Each
Assignor is duly organized, validly existing and in good standing
under the laws of its jurisdictions of organization, and possesses
all requisite power and authority to own, lease and operate its
properties and to carry on its business as it is now being owned,
leased, operated and conducted.
3.2 Due Authorization . Each
Assignor has full power and authority to enter into this Agreement
and to consummate the
