Exhibit 10.1
PURCHASE AND SALE
AGREEMENT
This PURCHASE AND SALE AGREEMENT
(this “ Agreement ”), dated as of July 15,
2009 (the “ Closing Date ”), is entered into by
and between Taberna Loan Holdings I, L.L.C., a Delaware limited
liability company (“ Seller ”) and AG Park Lane
I Corp., a Delaware corporation (“ Purchaser
”).
RECITALS
WHEREAS, Seller is the holder of and
beneficial owner of the assets described on the attached
Schedule A (the “ Subject Assets ”);
and
WHEREAS, Purchaser desires to
purchase from Seller, and Seller desires to sell to Purchaser, all
of Seller’s right, title and interest in and to the Subject
Assets for the Purchase Price (defined below) and subject to the
terms set forth herein;
NOW THEREFORE, in consideration of
the recitals and mutual promises herein and other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01 Subject to the
terms and conditions hereof, and in reliance upon the
representations and warranties of Seller set forth herein, Seller
hereby agrees to sell, transfer, convey, assign and deliver to
Purchaser with full title guarantee, and Purchaser hereby agrees to
purchase from Seller, all of Seller’s right, title and
interest in the Subject Assets, in each case, on the Closing Date,
subject to the payment of the Purchase Price on the Transfer Date
(as defined below).
Section 1.02 On the Transfer
Date, Purchaser shall pay to Seller an amount equal to $15,800,000
plus accrued interest of $705,000 for the Subject Assets (the
“ Purchase Price ”), less an amount equal to
$250,000 (the “ Holdback ”). Seller shall, on
the Transfer Date, reimburse Purchaser for its reasonable
out-of-pocket expenses in connection with its purchase of the
Purchased Assets, up to $50,000.
The Purchase Price, minus the
Holdback, shall be paid by Purchaser to Seller or its designee by
federal funds wire transfer of immediately available federal funds
no later than 5:00 p.m. (New York City time) on the Transfer
Date in accordance with the wiring instructions specified in
Schedule B attached hereto. The Holdback shall be
deposited with Citibank, N.A. (the “ Escrow Agent
”), subject to the terms of that certain Indemnification
Escrow Agreement, dated as of the date hereof (the “
Escrow Agreement ”), by and among Seller, Purchaser
and the Escrow Agent. In respect of all Subject Assets, other than
Zeroed-Out Bonds that cannot be registered in the Purchaser’s
name, upon receipt of evidence from all applicable transfer agents
for such Subject Assets that either (a) the applicable Subject
Assets have been re-registered from Seller to Purchaser or
(b) all transfer agents have received
all necessary assignments, certificates and
other documents necessary to effectuate a transfer of all the
applicable Subject Assets from Seller to Purchaser, Purchaser shall
provide written instruction to the Escrow Agent to release the
Holdback to Seller pursuant to the Escrow Agreement. As used in
this Agreement, “ Zeroed-Out Bond ” means any
Subject Asset for which the par amount of such Subject Asset has
been reduced to zero under the governing documents of such Subject
Asset.
Section 1.03 The settlement of
the purchase and sale of the Subject Assets shall take place via
email or at the offices of Cadwalader, Wickersham & Taft
LLP, One World Financial Center, New York, New York 10281 no later
than 5:00 p.m. on July 16, 2009 (the “ Transfer
Date ”), time being of the essence.
Section 1.04 All of
Seller’s right, title and interest in the Subject Assets and
the Original Assignment Documents (as defined below) shall pass to
Purchaser on the Closing Date, subject to the payment of the
Purchase Price on the Transfer Date. On or before the Transfer
Date, Seller shall (a) for each Subject Asset that is in
uncertificated form, transfer such Subject Asset to Wilmington
Trust Company’s Account #2215 held with The Depository Trust
Corporation in New York, New York to be held by Wilmington Trust
Company for the benefit of Purchaser and (b) deliver, or cause
to be delivered (as applicable), to Purchaser or its designee
(i) for each Subject Asset, an irrevocable direction letter
executed by Seller, in the form attached as Exhibit I to
this Agreement, instructing the recipient to pay with respect to
such Subject Asset, all amounts payable under such Subject Asset as
directed by Purchaser (a “ Direction Letter ”),
to be sent to and countersigned by the applicable recipient,
(ii) for each Subject Asset, copies of the agreements,
contracts, certificates and other documents pursuant to which
Seller acquired any right or interest in, or title to, such Subject
Asset (collectively, the “ Original Assignment
Documents ”), (iii) for each Subject Asset
registered in the name of Seller, (1) with respect to any
Subject Asset that is a certificated security, such certificated
security and (2) a complete executed set of any transfer
documents (including, without limitation, all other certificates,
assignments and bond powers), in form sufficient to allow transfer
and registration of the Subject Assets in the name of Purchaser and
(iv) for each Subject Asset registered in the name of a party
other than the Seller, (1) with respect to any Subject Asset
that is a certificated security, such certificated security,
(2) a complete executed set of any transfer documents
(including, without limitation, all other certificates, assignments
and bond powers), in form sufficient to allow transfer and
registration of such Subject Asset in the name of Seller and
(3) a complete executed set of any transfer documents from
Seller, in form sufficient to allow transfer and registration of
such Subject Asset in the name of Purchaser. The Subject Assets
shall not remain in the possession of Seller or any of its
agents.
Section 1.05 As of the Closing
Date, subject to the payment of the Purchase Price on the Transfer
Date, Purchaser shall be entitled to (i) receive all interest
and principal payments and other distributions paid in respect of
all Subject Assets and (ii) exercise all rights, including
voting and corporate rights and rights previously held by Seller
under the corresponding Original Assignment Documents, with respect
to the Subject Assets, and Seller shall exercise such rights on
Purchaser’s behalf during the time in which Purchaser is not
the registered holder of any Subject Asset, solely as directed by
Purchaser. Seller hereby agrees to instruct each applicable trustee
and servicer to transfer all income in respect of Subject Assets
directly to Purchaser. Notwithstanding the foregoing, if any
payment of income or other distribution from Subject Assets is paid
directly to Seller, each such payment received by Seller
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shall be held by Seller for Purchaser’s
benefit and promptly, but in no event later than two
(2) business days after receipt by Seller from Purchaser of a
notice of such misdirected payment, shall be remitted to Purchaser.
Notwithstanding the foregoing, if any payment of income or other
distribution from Subject Assets for the period prior to the
Closing Date is paid directly to Purchaser, each such payment
received by Purchaser shall be held by Purchaser for Seller’s
benefit and promptly, but in no event later than two
(2) business days after receipt by Purchaser from Seller of a
notice of such misdirected payment, shall be remitted to
Seller.
Section 1.06 Seller shall
(i) convey to Purchaser good title to the Subject Assets, free
and clear of any liens, claims, encumbrances or rights of others
and (ii) not claim that the Subject Assets are part of the
estate of Seller in the event of the insolvency or bankruptcy of
Seller.
Section 1.07 If (a) other
than with respect to the Zeroed-Out Bonds that cannot be registered
in the Purchaser’s name, any Subject Asset is not transferred
and registered in the name of Purchaser on or before the earlier of
(i) the date that is 60 calendar days after Seller obtains
knowledge or receives notice originating from the applicable
transfer agent for such Subject Asset that such transfer agent is
unable or unwilling to register such Subject Asset in the name of
Purchaser after Purchaser and Seller have, in good faith, delivered
all documents requested by such transfer agent or
(ii) April 15, 2010 (the “ Final Registration
Date ”), in each case, for any reason, or (b) for
any Subject Asset, the Seller fails to comply with the provisions
of Section 1.06 , Seller shall immediately repurchase
the applicable Subject Asset, together with all other Subject
Assets issued by the issuer of such Subject Asset for which a copy
of an opinion to the effect that such Subject Asset constitutes
indebtedness or will not constitute equity for federal income tax
purposes has not also been delivered to Purchaser (collectively,
the “ Returned Assets ”), at a purchase price,
not less than zero, equal to (A) the sum of (1) the
aggregate Return Price for such Returned Assets and
(2) interest equal to the daily application of the Interest
Rate to the aggregate Return Price for such Returned Assets during
the Holding Period, minus (B) the sum of (i) any
interest, principal and other income actually received by Purchaser
in respect of such Returned Assets and (ii) any amount of the
Holdback in respect of such Returned Assets that is either actually
received by Purchaser or for which Seller has provided the Escrow
Agent with an unqualified instruction to release such funds;
provided that, if the failure to re-register such Subject
Asset as described in clause (a) above is due solely to an act
or omission of Purchaser, Seller shall have no obligation to
repurchase such Subject Asset; provided further ,
that, if the applicable transfer agent has received all necessary
documents to re-register such Subject Asset (as requested by the
applicable transfer agent), the Final Registration Date shall be
automatically extended to June 1, 2010. As used herein,
(x) “ Holding Period ” means, for any
Returned Assets, the period beginning on the Transfer Date and
ending on the date on which Seller repurchases such Returned Assets
pursuant to this 0 , (y) “ Interest Rate
” shall mean a rate per annum equal to 10.5% and
(z) “ Return Price ” shall mean, for such
Returned Assets, the amount listed for such Returned Assets on
Schedule E .
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ARTICLE II
SECURITY INTEREST
Section 2.01 Purchaser and
Seller confirm that the transaction contemplated herein (the
“ Transaction ”) is a purchase and sale of the
Subject Assets and is not loan transaction. In the event, for any
reason, that the Transaction is deemed by any court or regulatory
authority, as a result of a change of law or otherwise, not to be a
purchase and sale of the Subject Assets, then the parties
understand and intend that this Agreement constitutes a
“securities contract” as that term is defined in
Section 741(7) of the United States Bankruptcy Code. In
addition to the foregoing, (x) Seller hereby pledges to
Purchaser as security for the performance by Seller of its
obligations under this Agreement and hereby grants, assigns and
pledges to Purchaser a fully perfected first-priority security
interest in the Subject Assets, together with any documents related
or ancillary thereto (including, without limitation, the Original
Assignment Documents) and all products and proceeds of any and all
of the foregoing, in all instances, whether now owned or hereafter
acquired, now existing or hereafter created (collectively, the
“ Collateral ”) and (y) possession of any
other documentation relating to the Subject Assets by Seller shall
constitute constructive possession by Purchaser.
Section 2.02 For purposes of
the grant of the security interest pursuant to this Article, the
Agreement shall be deemed to constitute a security agreement under
the New York Uniform Commercial Code (the “ UCC
”). Purchaser shall have all of the rights and may exercise
all of the remedies of a secured creditor under the UCC and the
other laws of the State of New York and Seller shall have all of
the rights and may exercise all of the remedies of a debtor under
the UCC and the other laws of the State of New York. In furtherance
of the foregoing, (a) Seller, at its sole cost and expense,
shall cause to be filed in such locations as may be necessary to
perfect and maintain perfection and priority of the security
interest granted hereby, UCC 1 financing statements and
continuation statements (collectively, the “ Filings
”), and shall forward copies of such Filings to Purchaser
upon completion thereof, (b) Seller shall from time to time
take such further actions as may be reasonably requested by
Purchaser to maintain and continue the perfection and priority of
the security interest granted hereby (including marking its records
and files to evidence the interests granted to Purchaser hereunder)
and (c) Seller hereby authorizes Purchaser, at
Purchaser’s option, to file any such Filings.
ARTICLE III
REPRESENTATIONS; WARRANTIES AND
COVENANTS OF SELLER
Seller hereby represents, warrants
and covenants to Purchaser, its successors and assigns, that, as of
the Transfer Date and, unless otherwise specified, as of the date
hereof:
Section 3.01 It is limited
liability company, duly formed, validly existing and in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently
conducted and has been at all relevant times, and such execution
and delivery does not and will not violate any law, regulation,
ordinance, certificate of formation, limited liability company
agreement or rule applicable to it.
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Section 3.02 It has the
requisite power and authority to execute and deliver this Agreement
and to carry out its terms; the execution, delivery and performance
of this Agreement have been duly authorized by it by all necessary
action; and this Agreement is its legal, valid, binding and
enforceable obligation, subject to (i) any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the
enforceability of creditors’ rights generally and
(ii) general equitable principles, whether applied in a
proceeding at law or in equity.
Section 3.03 This Agreement has
been duly executed and delivered by it.
Section 3.04 On the date
hereof, it has delivered to Purchaser a certificate of Seller,
dated as of the date hereof, substantially in the form of
Exhibit II , with appropriate insertions and attachments
(including, without limitation, (i) copies of the resolutions
of Seller’s sole member authorizing the execution of this
Agreement and the transactions contemplated herein, (ii) true,
correct and complete copies of the organizational documents of
Seller and (iii) a certificate as of a recent date from the
Delaware Secretary of State evidencing the good standing of Seller
in the State of Delaware), satisfactory in form and substance to
Purchaser, executed by a duly authorized officer of the
Seller.
Section 3.05
Reserved.
Section 3.06 It is currently
solvent and able to pay its debts as they become due. It is not
subject and does not expect to be subject to (a) the
institution of proceedings to be adjudicated as bankrupt or
insolvent, (b) the consent by it to the institution of
bankruptcy or insolvency proceedings against it, (c) the
filing by it of a petition or answer or consent seeking
reorganization or relief under the United States Bankruptcy Code or
any other similar applicable law of any applicable jurisdiction,
(d) the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or examiner (or other similar official) or of any
substantial part of its property or to the ordering of the winding
up or liquidation of its affairs, respectively, or the making by it
of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due, or the taking of any action by it in furtherance of any
such action; or (e) the entry of a decree or order by a court
having competent jurisdiction in the premises adjudging it as
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, examination, adjustment or
composition of or in respect of it under the United States
Bankruptcy Code or any other applicable law of any applicable
jurisdiction, or appointing a receiver, liquidator, assignee, or
sequestrator (or other similar official) of it or of any
substantial part of its property or ordering the winding up or
liquidation of its affairs.
Section 3.07 As of the Closing
Date, it has and will deliver to Purchaser good title to and is the
sole beneficial owner of the Subject Assets free and clear of any
liens, security interests, pledges, claims, charges or other
encumbrances, whether under the Uniform Commercial Code as in
effect in any applicable jurisdiction or otherwise and, upon
delivery of the Subject Assets to Purchaser, Purchaser shall have
good title to and will be the sole beneficial owner of, the Subject
Assets free and clear of any liens, security interests, pledges,
claims, charges or other encumbrances. It has not assigned, pledged
or otherwise encumbered any interest in any of the Subject Assets
and there is no purchaser in good faith having taken the Subject
Assets without notice of Adverse Claim (as such term is defined
under Article 9 of the Uniform Commercial Code as in effect in
any applicable jurisdiction).
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Section 3.08 It has complied
with all requirements of any applicable law and of the underlying
instruments governing (i) the transfer to it of the Subject
Assets and (ii) all transfers of the Subject Assets to
Purchaser by it.
Section 3.09 It intends to
treat the transfer of the Subject Assets to Purchaser as a sale for
accounting and any applicable regulatory purposes and its records
will reflect the transfer of the Subject Assets as a
sale.
Section 3.10 No consent,
license, approval or authorization of, filing with, notice to or
other act by or in respect of, any agency or governmental authority
or any other person is required of or with respect to it in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
Section 3.11 Each Subject Asset
sold hereunder conforms in all material respects to the applicable
representations and warranties set forth in Exhibit IV
attached hereto, except as disclosed to Purchaser in writing prior
to the Closing Date.
Section 3.12 With respect to
all of the Subject Assets sold hereunder, Seller shall execute an
omnibus power of attorney substantially in the form of
Exhibit V attached hereto irrevocably appointing
Purchaser its attorney in fact with full power and authority to
(i) prepare and complete any transfer documentation required
by the applicable transfer agent for any Subject Asset to
effectuate the sale and transfer of such Subject Asset to Purchaser
from Seller and (ii) take such other steps as may be necessary
or desirable to enforce Purchaser’s rights in respect of such
Subject Asset, including, but not limited to, the right to prepare
and execute bond powers, complete blanks in documents, and sign
assignments on behalf of Seller as its agent and attorney in fact.
All powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable without
Purchaser’s consent.
Section 3.13 Seller is owned
100% by Taberna Realty Finance Trust and is and has always been
treated as a qualified REIT subsidiary of Taberna Realty Finance
Trust as defined in Section 856 of Internal Revenue Code of
1986, as amended (the “ Code ”).
Section 3.14 As of the Transfer
Date, all of the equity of each Subject Asset Issuer is and has
always been 100% owned by Seller for federal income tax purposes
and each Subject Asset Issuer is and has always been a qualified
REIT subsidiary of Taberna Realty Finance Trust as defined in
Section 856 of the Code. For purposes of this representation,
“ Subject Asset Issuer ” shall mean each of
(a) Bear Stearns ARM Trust Series 2005-7, (b) Bear
Stearns ARM Trust Series 2005-9, (c) Citigroup Mortgage Loan
Trust 2005-11, (d) Merrill Lynch Mortgage Investors Trust,
Series 2005-A9, (e) CWABS Trust 2005-HYB9, and
(f) Merrill Lynch Mortgage Backed Securities Trust, Series
2007-2.
Section 3.15 Taberna Realty
Finance Trust is and has always been a real estate investment trust
(a “ REIT ”) for federal income tax purposes and
is and has always been entitled to a dividends paid deduction under
Section 857 of the Code.
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Section 3.16 RAIT Financial
Trust is and has always been a REIT for federal income tax purposes
and is and has always been entitled to a dividends paid deduction
under Section 857 of the Code.
Section 3.17 Other than as
described on Schedule D attached hereto, Seller and each of its
affiliates has timely filed all federal income and state income and
franchise Tax returns and all other material Tax returns that are
required to be filed by them and have timely paid all Taxes due,
except for any such taxes as are being appropriately contested in
good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves in conformity with GAAP have
been provided. The charges, accruals and reserves on the books of
Seller and its affiliates in respect of Taxes and other
governmental charges are adequate and maintained in accordance with
GAAP. For purposes of this representation, “ Tax
” means any Federal, state, local or foreign tax, fee or
other like assessment or charge of any kind, including, without
limitation, any net income, alternative or add-on minimum tax,
gross income, gross receipts, sales, use, ad valorem, value-added,
transfer, franchise, profits, license, withholding on amounts paid
to or by the taxpayer, payroll, employment, excise, severance,
stamp, capital stock, occupation, property, environmental or
windfall tax, premium, customs duty or other tax, together with any
interest and penalty additions to tax.
Section 3.18 Seller has
transferred to Purchaser all of the equity of Bear Stearns ARM
Trust Series 2005-7 for federal income tax purposes and has
provided Purchaser with an opinion for any financial instrument
issued by Bear Stearns ARM Trust Series 2005-7, or of which Bear
Stearns ARM Trust Series 2005-7 is a counterparty, that is not
transferred to Purchaser to the effect that each such instrument
constitutes indebtedness or will not constitute equity for federal
income tax purposes.
Section 3.19 Seller has
transferred to Purchaser all of the equity of Bear Stearns ARM
Trust Series 2005-9 for federal income tax purposes and has
provided Purchaser with an opinion for any financial instrument
issued by Bear Stearns ARM Trust Series 2005-9, or of which Bear
Stearns ARM Trust Series 2005-9 is a counterparty, that is not
transferred to Purchaser to the effect that each such instrument
constitutes indebtedness or will not constitute equity for federal
income tax purposes.
Section 3.20 Seller has
transferred to Purchaser all of the equity of Citigroup Mortgage
Loan Trust 2005-11 for federal income tax purposes and has provided
Purchaser with an opinion for any financial instrument issued by
Citigroup Mortgage Loan Trust 2005-11, or of which Citigroup
Mortgage Loan Trust 2005-11 is a counterparty, that is not
transferred to Purchaser to the effect that each such instrument
constitutes indebtedness or will not constitute equity for federal
income tax purposes.
Section 3.21 Seller has
transferred to Purchaser all of the equity of Merrill Lynch
Mortgage Investors Trust, Series 2005-A9 for federal income tax
purposes and has provided Purchaser with an opinion for any
financial instrument issued by Merrill Lynch Mortgage Investors
Trust, Series 2005-A9, or of which Merrill Lynch Mortgage Investors
Trust, Series 2005-A9 is a counterparty, that is not transferred to
Purchaser to the effect that each such instrument constitutes
indebtedness or will not constitute equity for federal income tax
purposes.
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Section 3.22 Seller has
transferred to Purchaser all of the equity of CWABS Trust 2005-HYB9
for federal income tax purposes and has provided Purchaser with an
opinion for any financial instrument issued by CWABS Trust
2005-HYB9, or
