Sale and Assignment Agreement by and between the Registrant and ATAX TEBS I, LLC, dated September 1, 2010

 

THIS SALE, CONTRIBUTION AND ASSIGNMENT AGREEMENT (this “Agreement”), dated as of September 1, 2010, is between AMERICA FIRST TAX EXEMPT INVESTORS, L.P., a Delaware limited partnership (“ATAX”) and ATAX TEBS I, LLC., a Delaware limited liability company (the “Sponsor”).

 

W I T N ES S E T H :

 

Capitalized terms used herein and not otherwise defined in this Agreement shall have the meanings set forth in the Bond Exchange, Reimbursement, Pledge and Security Agreement, dated as of September 1, 2010 (the ”Reimbursement Agreement”), between the Federal Home Loan Mortgage Corporation (“Freddie Mac”) and the Sponsor.

 

WHEREAS, ATAX is the sole economic member of the Sponsor;

 

WHEREAS, ATAX is the owner of certain multifamily housing revenue bonds listed on Schedule I hereto (the “Bonds”);

WHEREAS, concurrently with delivery of this Agreement, ATAX is causing the Sponsor to deposit certain of the Bonds with The Bank of New York Mellon Trust Company, N.A., as custodian (the “Custodian”), pursuant to a Custody Agreement, dated as of the date hereof (the “Custody Agreement”), in exchange for senior custodial receipts (the “Senior Custodial Receipts”) and subordinate custodial receipts (the “Subordinate Custodial Receipts” and, together with the Senior Custodial Receipts, the “Receipts”);

WHEREAS, concurrently with delivery of this Agreement, ATAX is causing the Sponsor, pursuant to the Reimbursement Agreement, to deposit certain of the Bonds and the Senior Custodial Receipts (collectively, the “Deposited Assets”) with Freddie Mac in exchange for two or more series of certificates (collectively, the “Certificates”) evidencing undivided beneficial interests in the Deposited Assets related to the series of certificates;

 

WHEREAS, pursuant to the Credit Enhancement, Freddie Mac has agreed to guaranty certain payments due on the Class A Certificates;

 

WHEREAS, ATAX desires to cause the Class A Certificates to be sold to investors and to have Freddie Mac guaranty payments due on the Class A Certificates and to have the Sponsor retain the Class B Certificates;

 

WHEREAS, ATAX will gain substantial benefit by causing the Sponsor to enter into the transactions contemplated by the Reimbursement Agreement; and

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration and the mutual terms and covenants contained herein, the parties hereto agree as follows:

 

Section 1. Definitions.  As used in this Agreement, the following terms shall, unless the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms of the terms defined):

 

“Agreement” means this Sale, Contribution and Assignment Agreement and all amendments hereof and supplements hereto.

 

“Closing Date” means September 2, 2010.

 

“Sponsor Documents” has the meaning given to such term in the Reimbursement Agreement.

 

Section 2. Sale, Contribution and Assignment.  For value received, ATAX does hereby, effective as of the Closing Date, sell, contribute, assign, transfer and otherwise convey, or cause to be sold, contributed, assigned, transferred and conveyed to the Sponsor, including causing assignment directly to Freddie Mac for the benefit of the Sponsor (collectively, the “Transfer”), without recourse, all right, title and interest of ATAX in and to the Bonds, all payments due thereon, all rights held by ATAX as the Bondholder Representative in, to and under the Bonds and related Bond Documents, and the proceeds of any and all of the foregoing.  The Bonds will be transferred to the Sponsor in part as a sale, for an amount equal to the proceeds of the sale of the Class A Certificates minus costs of the transactions contemplated by the Sponsor Documents, including escrow and reserve funds required thereby, and in part as a capital contribution.

 

The Sponsor hereby accepts the Transfer of the Bonds.  Simultaneously with the Transfer, the Sponsor is depositing the Deposited Assets with Freddie Mac as contemplated by the Reimbursement Agreement.

 

Section 3. Assignment Procedures.  ATAX, on or before the Closing Date, shall cause each series of Bonds, identified by CUSIP number, which are in definitive or certificated form and representing all Bonds of such series outstanding to be physically delivered to or at the direction of the Sponsor, indorsed (or accompanied by bond powers indorsed) to the Sponsor or in blank by the current registered owner thereof and, as applicable, certified by an appropriate medallion seal, and (ii) each series of Bonds, identified by CUSIP number, which are registered on the book-entry system of The Depository Trust Company (“DTC”) and representing all Bonds of such series outstanding to be transferred pursuant to appropriate transfer instruments or instructions via the DTC securities settlement, delivery and payment system to or for the account of the Sponsor or such other account as directed by the Sponsor.

 

Section 4. Representations and Warranties of ATAX.  ATAX hereby represents and warrants to the Sponsor that as of the Closing Date:

 

(i) Due Authorization, Execution and Validity.  This Agreement has been duly authorized by ATAX, is valid and binding agreement of ATAX, and is enforceable in accordance with its terms except as may be limited by bankruptcy, insolvency, reorganization, moratoriums, liquidation or readjustment of debt or similar laws affecting the enforcement of creditors’ rights generally and as may be limited to the effect of general principles of equity.

 

(ii) Organization and Existence.  ATAX (i) is a limited partnership duly organized and existing pursuant to the laws of the State of Delaware, (ii) has the corporate power and authority to own its properties and to carry on its business as now being conducted and as contemplated hereby, and (iii) has the corporate power and authority to execute and perform all of its undertakings hereunder.

 

(iii) No Violation.  The execution and performance by ATAX of this Agreement (i) will not violate in any material respect or, as applicable, have not violated in any material respect any provision of any law, rule or regulation binding upon ATAX or any order of any court or other agency or government having jurisdiction over ATAX, and (ii) will not violate in any material respect, or as applicable, have not violated in any material respect any provision of any indenture, agreement or other instrument to which ATAX is a party or is otherwise subject, or result in the creation or imposition of any lien, charge or encumbrance of any nature except, in each case, as contemplated by the Sponsor Documents or this Agreement or as would not reasonably be expected to have a material adverse effect on ATAX’s ability to perform its respective obligations hereunder or under the ATAX Documents.

 

(iv) Fair Value.  ATAX has received reasonably equivalent value and fair consideration for the Bonds that it assigned to the Sponsor.

 

(v) Good Title; Absence of Liens; Security Interest.  Immediately prior to the transfer to the Sponsor, ATAX is the owner of, and has good and marketable title to, the Bonds that it assigned to the Sponsor free and clear of all liens, and has full right, corporate power and lawful authority to assign, transfer and pledge such Bonds.

 

(vi) Solvency; Fraudulent Conveyance.  ATAX is solvent and will not be rendered insolvent by the transactions contemplated by the Transaction Documents and, after giving effect to such transactions, ATAX will not be left with an unreasonably small amount of capital with which to engage in its business.  ATAX does not intend to incur, or believes that it has incurred, debts beyond its ability to pay such debts as they mature.  ATAX does not contemplate the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of ATAX or any of its assets.  ATAX is not transferring (or causing to be transferred) the Bonds to the Sponsor and is not causing any affiliate of ATAX to transfer any Bonds to the Sponsor, and is not causing the Sponsor to transfer any Bonds to Freddie Mac, all as contemplated by the Sponsor Documents, with any intent to hinder, delay or defraud any of ATAX’s or its affiliates’ creditors.

 

(vii) Bonds.  With respect to the Bonds ATAX makes the representations and warranties set forth in Section 2.1 of the Reimbursement Agreement, as if such representations and warranties are set forth herein.

 

Section 5. Representations and Warranties of the Sponsor.  The Sponsor hereby represents and warrants to ATAX that as of the Closing Date:

 

(i) Due Authorization, Execution and Validity.  This Agreement has been duly authorized by the Sponsor, is valid and binding agreement of the Sponsor, and is enforceable in accordance with its terms except as may be limited by bankruptcy, insolvency, reorganization, moratoriums, liquidation or readjustment of debt or similar laws affecting the enforcement of creditors’ rights generally and as may be limited to the effect of general principles of equity.

 

(ii) Organization and Existence.  The Sponsor (i) is a limited liability company duly organized and existing pursuant to the laws of the State of Delaware, (ii) has the power and authority to own its properties and to carry on its business as now being conducted and as contemplated hereby, and (iii) has the power and authority to execute and perform all of its undertakings hereunder.

 

(iii) No Violation.  The execution and performance by the Sponsor of this Agreement (i) will not violate in any material respect or, as applicable, have not violated in any material respect any provision of any law, rule or regulation binding upon the Sponsor or any order of any court or other agency or government having jurisdiction over the Sponsor, and (ii) will not violate in any material respect, or as applicable, have not violated in any material respect any provision of any indenture, agreement or other instrument to which the Sponsor is a party or is otherwise subject, or result in the creation or imposition of any lien, charge or encumbrance of any nature except, in each case, as contemplated by the Sponsor Documents or this Agreement or as would not reasonably be expected to have a material adverse effect on the Sponsor’s ability to perform its respective obligations hereunder or under the Sponsor Documents.

 

(iv) Solvency; Fraudulent Conveyance.  The Sponsor is solvent and will not be rendered insolvent by the transactions contemplated by the Transaction Documents and, after giving effect to such transactions, the Sponsor will not be left with an unreasonably small amount of capital with which to engage in its business.  The Sponsor does not intend to incur, or believes that it has incurred, debts beyond its ability to pay such debts as they mature.  The Sponsor does not contemplate the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of the Sponsor or any of its assets.  The Sponsor is not transferring the Bonds to Freddie Mac, all as contemplated by the Sponsor Documents, with any intent to hinder, delay or defraud any of the Sponsor’s creditors.

 

Section 6. Characterization of Transfer.  It is the express intention of the parties hereto that the Transfer of the Bonds by ATAX to the Sponsor be, and be construed as, an absolute sale and transfer to the Sponsor and not as a secured borrowing or a pledge of the Bonds by ATAX to the Sponsor to secure a debt or other obligation of ATAX.  ATAX will record the transaction as a sale from ATAX to the Sponsor; provided however, that due to consolidation of the Sponsor with ATAX under GAAP, the sale transaction will be presented on the consolidated financial statements of ATAX and the Sponsor as a secured financing for GAAP and, therefore, the Class A Certificates will be reported as debt on the consolidated financial statements of ATAX.  However, in the event that, notwithstanding the aforementioned intent of the parties, the Bonds are held to be property of ATAX, then, and exclusively and solely in such event, it is the express intent of the parties that such conveyance be deemed to be a pledge of the Bonds by ATAX to the Sponsor to secure a debt or other obligation of ATAX and this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code.

 

Section 7. Headings.  The various headings in this Agreement are included for conveyance only and shall not affect the meaning or interpretation of any provision of this Agreement.  References in this Agreement to section names or numbers are to such sections of this Agreement.

 

Section 8. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

 

Section 9. Counterparts. This Agreement may be executed in two or more counterparts each of which shall be an original, but all of which together shall constitute one and the same instrument.

 

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