SUBI CERTIFICATE PLEDGE AGREEMENT by CRESCIT EUNDO FINANCE I, LLC, as Pledgor in favor of ROCHDALE STRUCTURED CLAIMS FIXED INCOME FUND, LLC, as Secured Party Dated as of February __, 2010
Exhibit
(k)(6)
by
CRESCIT EUNDO FINANCE I, LLC,
as Pledgor
in favor
of
ROCHDALE STRUCTURED CLAIMS FIXED
INCOME FUND, LLC, as Secured Party
Dated as
of February __, 2010
THIS SUBI
CERTIFICATE PLEDGE AGREEMENT, dated as of February __, 2010 (as the same may at
any time be amended, modified, restated or supplemented in accordance with the
terms hereof, this “Agreement”), is made
by CRESCIT EUNDO FINANCE I,
LLC, a Delaware
limited liability company (the “Pledgor”), and ROCHDALE STRUCTURED CLAIMS FIXED
INCOME FUND, LLC, a Delaware limited liability company (the “Secured
Party”).
RECITALS
WHEREAS,
Crescit Eundo Trust, a Delaware statutory trust (the “Trust”), was formed
pursuant to that certain Trust Agreement, dated as of February __, 2010, by and
among Peach Holdings, LLC, a Delaware limited liability company, as grantor (the
“Grantor”) and UTI certificateholder (the “UTI
Certificateholder”), ▇▇▇▇▇ Fargo Delaware Trust Company, National
Association, as Delaware trustee (the “Delaware Trustee”),
and ▇▇▇▇▇ Fargo Bank, National Association (“▇▇▇▇▇ Fargo”), as
trustee (the “Trustee”) (as may be
further amended, supplemented or modified from time to time, the “Trust
Agreement”);
WHEREAS,
the UTI Certificateholder holds an exclusive, undivided beneficial interest in
all assets of the Trust generally (the “UTI”);
WHEREAS,
pursuant to the Trust Agreement, the UTI Certificateholder may direct the
Grantor, the Trustee and the Servicer to enter into one or more supplements to
the Trust Agreement with the UTI Certificateholder pursuant to which (i) one or
more “special units of beneficial interest” in the Trust (each, a “SUBI”) shall be
established, (ii) the Servicer will associate assets of the Trust with each such
SUBI on the books and records of the Trust and such SUBI and (iii) the Trust
(for and with respect to each such SUBI) shall issue beneficial interest
certificates representing beneficial interests in the assets of such
SUBIs;
WHEREAS,
the UTI Certificateholder, the Trustee, the Grantor and the Servicer entered
into that certain SUBI Supplement, dated as of February __, 2010 (as amended,
supplemented or modified from time to time, the “Rochdale SUBI
Supplement”), creating a SUBI known as the Rochdale Structured Claims
Fixed Income Fund (the “Rochdale
SUBI”);
WHEREAS, pursuant to the Trust
Agreement and the Rochdale SUBI Supplement, the Trust (for and with respect to
the Rochdale SUBI) has issued Special Unit of Beneficial Interest Certificate
No. S-1 relating to the Rochdale SUBI to the Pledgor, evidencing a 100%
beneficial interest in all assets associated with the Rochdale SUBI (the “Rochdale SUBI
Certificate”);
WHEREAS,
pursuant to the Structured Settlement Sale and Purchase Agreement, dated as of
February __, 2010 (the “Purchase and Sale
Agreement”), by and between Trust for and with respect to the Rochdale
SUBI and Settlement Funding, LLC d/b/a Peachtree Settlement Funding, a Georgia
limited liability company, in its capacity as the seller (the “Seller”) of the
Receivables, the Trust (for and with respect to the Rochdale SUBI) will, from
time to time, purchase certain Receivables from the Seller which Receivables,
upon purchase, shall be titled in the name of the Trust for and with respect to
the Rochdale SUBI;
WHEREAS,
pursuant to that certain Note Purchase Agreement, dated as of February
__,
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2010, by
and between the Pledgor and the Secured Party (as amended, supplemented or
modified from time to time, the “Note Purchase
Agreement”), the Secured Party has agreed to purchase an 8.15% Fixed Rate
Asset-Backed Note, Series 2009-A (the “Note”) for
$41,864,306.83 for the purpose of, among other things, enabling the Pledgor to
fund the Trust (for and with respect to the Rochdale SUBI) to pay the
anticipated costs in connection with the purchase of Receivables associated with
the Rochdale SUBI, purchased directly for the benefit of the Rochdale SUBI or
purchased indirectly for the benefit of the Rochdale SUBI through the Trust,
upon the terms and subject to the conditions set forth in the Note Purchase
Agreement; and
WHEREAS,
the Secured Party would not purchase the Note unless the Pledgor shall have
executed and delivered this Agreement and shall have delivered the Rochdale SUBI
Certificate to the Secured Party as collateral therefor;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants herein
contained, and other good and valuable consideration (receipt and sufficiency of
which are hereby acknowledged), the parties hereto agree as
follows:
SECTION
1 Definitions. (a)
Unless defined herein, all terms defined in the Trust Agreement, the Note
Purchase Agreement or the Purchase and Sale Agreement shall have the same
meaning when used herein notwithstanding any termination thereof.
(b) When
used herein, the following terms shall have the following meanings:
“Affiliate” means,
with respect to any Person, any other Person that (at the time when the
determination is to be made) directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the specified Person. As used in the foregoing sentence, the term
“control” (including, with correlative meaning, the terms “controlling,”
“controlled by” and “under common control with”) means the power to direct the
management of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
“Agreement” has the
meaning set forth in the Preamble.
“Annuity Contract”
means any annuity contract: (a) issued by a U.S. domiciled insurance company
that provides payment to a Claimant in respect of the obligations of the
Settlement Counterparty under a Settlement Agreement to which such Claimant is a
party or (b) that was purchased by a Claimant or the Claimant’s predecessor in
interest.
“Annuity Provider”
means the purchaser of any Annuity Contract.
“Assignment” means an
assignment of the Purchased Assets from the Seller to the Purchaser, dated as of
each Purchase Date, in substantially the form of Exhibit “B” to the
Purchase and Sale Agreement.
“Business Day” means
any day other than a Saturday or Sunday or any other day on which commercial
banking institutions in New York, New York or Minneapolis, Minnesota are
authorized or obligated by Law to be closed.
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“Certificate Register”
shall mean the certificate register maintained by the Trustee at its corporate
trust office in respect of pledges and transfers of the Rochdale SUBI
Certificate.
“Claimant” means the
Person entitled to receive the Settlement Payments under the terms of a
Settlement Agreement or the payments under an Annuity Contract, as
applicable.
“Collateral” has the
meaning set forth in Section 2.
“Collateral Agent”
means The Bank of New York Mellon, as collateral agent under each Intercreditor
Agreement, and its successors and permitted assigns, in such
capacity.
“Collected Funds”
means, with respect to any Determination Date, the amount of funds in the
Concentration Account (or, once transferred, in the Collection Account)
representing collections on the Purchased Assets received during the related
Monthly Period, including all Settlement Payments, administrative fees, expenses
and charges, late fees, penalty interest and other amounts paid by or on behalf
of Payors with respect to the Purchased Assets (but excluding any Repurchase
Price).
“Collection Account”
means a segregated trust account, account number ________, established at ▇▇▇▇▇
Fargo by the Servicer on behalf of the Pledgor, and titled the “Crescit Eundo
Finance I, LLC, Collection Account”.
“Concentration
Account” means the concentration account maintained by the Concentration
Account Bank in the name of the “Trustee” under each Intercreditor Agreement; or
such other concentration account established with the consent of Collateral
Agent.
“Concentration Account
Bank” means SunTrust Bank and its successors and permitted
assigns.
“Custodian” means
▇▇▇▇▇ Fargo Bank, National Association, a national banking association, or any
other Person named from time to time as custodian in accordance with the
Custodian and Verification Agreement.
“Custodian and Verification
Agreement” means the Custodian and Verification Agreement, dated as of
February __, 2010, among the Custodian, the Servicer, the Seller and the
Purchaser, as amended, modified or supplemented from time to time.
“Default Notice” has
the meaning set forth in Section 14.
“Default Rate”
means
“Determination Date”
means, with respect to any Payment Date, the sixth Business Day preceding such
Payment Date.
“Eligibility Criteria”
means the criteria set forth on Annex 2 to the
Purchase and Sale Agreement, which must be satisfied in order for a Receivable
to become eligible to be assigned to the Purchaser.
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“Eligible Receivable
Files” means, with respect to any Eligible Receivable, executed copies of
each of the documents set forth in Annex 1 to the
Purchase and Sale Agreement.
“Eligible Receivables”
means any and all Receivables which satisfy, as determined in the reasonable
discretion of the Purchaser, the Eligibility Criteria as of the applicable
Purchase Date as certified in a Seller’s Certificate issued by the Seller to the
Purchaser, and which consist of payment rights under Structured Settlements or
Owned Annuities.
“Governmental
Authority” means any federal, national, state, provincial or local
governmental, regulatory or administrative authority, agency, commission,
including any state insurance regulatory authority, court, tribunal or judicial
or arbitral body.
“Initial Purchase”
means the first sale of Eligible Receivables to the Purchaser.
“Intercreditor
Agreement” means each of (i) the Twelfth Amended and Restated
Intercreditor Agreement, dated as of February __, 2010, among The Bank of New
York Mellon, ▇▇▇▇▇ Fargo Bank, National Association, WestLB AG, New York Branch,
HVBFF Life Receivables Eurotrust, for and with respect to SUBI Portfolio
LebensWert 1 “A”, Structured Receivables Finance #1, LLC, Structured Receivables
Finance #2, LLC, Structured Receivables Finance #3, LLC, Structured Receivables
Finance #4, LLC, Structured Receivables Finance 2006-B, LLC,
Structured Receivables Finance 2010-A, LLC, Peachtree Structured Settlements,
LLC, Settlement Funding, LLC and the Trust for and with respect to its Rochdale
SUBI, and (ii) the Ninth Amended and Restated Intercreditor Agreement, dated as
of February __, 2010, among The Bank of New York Mellon, Settlement Funding,
LLC, Peachtree Finance Company, LLC, Peachtree Structured Settlements, LLC,
HVBFF Life Receivables Eurotrust, for and with respect to SUBI Portfolio
LebensWert 1 “A”, Peachtree Finance Company #2, LLC, Structured Receivables
Finance #3, LLC, Structured Receivables Finance #4, LLC, Structured Receivables
Finance 2006-B, LLC, Structured Receivables Finance 2010-A, LLC, ▇▇▇▇▇ Fargo
Bank, National Association, WestLB AG, New York Branch, SunTrust ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Inc. and the Trust for and with respect to its Rochdale
SUBI.
“Internal Revenue
Code” shall mean the Internal Revenue Code of 1986, as the same may be
amended or supplemented from time to time, or any successor statute, and the
rules and regulations thereunder, as the same are from time to time in
effect.
“Law” means any
statute, law, ordinance, regulation, rule, code, requirement or rule of law
(including insurance, tax and common law) of any Governmental
Authority.
“Monthly Period”
means, with respect to a Payment Date or a Determination Date, the calendar
month immediately preceding the month in which such Payment Date or
Determination Date occurs (such calendar month being referred to as the “related” Monthly
Period with respect to such Payment Date or Determination Date).
“Note Purchase Agreement” has the
meaning set forth in the Recitals.
“Obligations” means
any and all obligations and other liabilities of the Pledgor to the Secured
Party, whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Note
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Purchase
Agreement, this Agreement, the Related Documents or any other document made,
delivered or given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise.
“Owned Annuities”
means annuities assignable by their terms or assigned pursuant to a court order
or with the express consent of the Annuity Provider.
“Payment Date” means
the 15th day of each calendar month, or if such 15th day is not a Business Day,
the next succeeding Business Day.
“Payor” means, with
respect to any Eligible Receivable, the Person directed or obligated to make the
scheduled payments under the Related Contract, including, without limitation,
any Settlement Counterparty or Annuity Provider, and/or guarantor of any of the
same.
“Person” means any
natural person, corporation, limited partnership, general partnership,
association, company, limited liability company, trust, business trust,
statutory trust or other organization whether or not a legal
entity.
“Pledgor” has the
meaning set forth in the Preamble.
“Purchase Date” means
the date when the Purchaser purchases an Eligible Receivable from the Seller
upon the execution of an Assignment (with the delivery of a Supplement thereto,
if applicable) and upon the payment of the Purchase Price for such Eligible
Receivable by the Purchaser to the Seller in accordance with the terms of the
Purchase and Sale Agreement; provided, however, that the
Purchase Date of the Initial Purchase shall be on or before February __,
2010.
“Purchase Notice”
means a written notice regarding an Eligible Receivable signed by a Responsible
Officer and delivered by the Seller to the Purchaser pursuant to Section 2.1(c)
of the Purchase and Sale Agreement, which shall include (i) the proposed
Purchase Date, (ii) the payments to be sold and the Eligible Receivable to which
such payments relate, (iii) the schedule and the net present value of the amount
of payments to be made under such Eligible Receivable and (iv) the Purchase
Price for such Eligible Receivable.
“Purchase Price” means
an amount as of each Purchase Date equal to the sum of the net present value of
all future cash flows due and owing under each Receivable sold by Seller to
Purchaser on such Purchase Date as set forth in the applicable Purchase Notice
delivered by Seller to Purchaser, discounted by a fixed interest rate equal to
eight and sixty-five hundredths percent (8.65%) per annum calculated based on
actual days outstanding on a 360 day basis.
“Purchased Assets”
means (i) all Eligible Receivables included on Exhibit A to the
Purchase and Sale Agreement (subject to the terms and conditions set forth in
the Purchase and Sale Agreement), in the case of the Initial Purchase, and
subsequently, each Supplement and Assignment, (ii) all Related Assets and (iii)
the proceeds of any and all of the foregoing, including all rights of recourse
or recovery against any third party and all other claims, rights and causes of
action relating to or arising out of any of the foregoing.
“Purchaser” means the
Trust, for and with respect to its Rochdale SUBI.
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“Receivables” means
all rights, titles and interests of the Seller in, to and under certain
Structured Settlement receivables or Owned Annuity payments.
“Related Assets”
means, with respect to any Eligible Receivable, all of the Seller’s or
Purchaser’s rights, title and interest in, to and under:
(i) the
Related Contracts and all guarantees, indemnities, warranties, insurance (and
proceeds and premium refunds thereof) or other agreements, documents, books,
records and other information or arrangements of any kind from time to time
supporting or securing payment of, or maintained with respect to, such Eligible
Receivable, whether pursuant to the Related Contracts or otherwise;
(ii) all
Eligible Receivable Files and records related to such Eligible Receivables;
and
(iii) all
Collected Funds and other proceeds of any of the foregoing.
“Related Contract”
means, with respect to any Eligible Receivable, any Settlement Agreement,
Annuity Contract, guaranty or performance bond, as the case may be, in respect
of such Eligible Receivable.
“Related Documents”
means the Purchase and Sale Agreement, this Agreement, the Custodian and
Verification Agreement, the Servicing Agreement, the Trust Agreement, the
Rochdale SUBI Supplement, each Intercreditor Agreement and each
Assignment.
“Repurchase Price”
means an amount equal to the sum of (a) the Purchase Price paid by the Purchaser
for such Purchased Assets, minus (b) the amount
actually collected by the Purchaser related to such Purchased Assets from the
Purchase Date through the date of repurchase by the Seller.
“Responsible Officer”
means, when used with respect to any Person that is not an individual, the
President, Chief Executive Officer, any Vice-President or Assistant
Vice-President or the Controller of such Person, or any other officer or
employee having similar functions.
“Rochdale SUBI Assets”
means the Trust Assets associated with the Rochdale SUBI on the books and
records of the Trust and the Rochdale SUBI.
“Rochdale SUBI
Supplement” has the meaning set forth in the Recitals.
“Secured Party” has
the meaning set forth in the Recitals.
“Security Interest”
shall, when used with respect to any Person, mean any mortgage, lien, pledge,
encumbrance, charge, retained security title of a conditional vendor or lessor,
or other security interest of any kind, whether arising under a security
agreement, mortgage, deed of trust, chattel mortgage, assignment, pledge,
retention of security title, financing or similar statement or notice or arising
as a matter of law, judicial process or otherwise.
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“Seller’s Certificate”
means a certificate signed by a Responsible Officer of the Seller certifying
that a Receivable is an Eligible Receivable substantially in the form of Exhibit C attached to
the Purchase and Sale Agreement.
“Servicer” means
Settlement Funding, LLC, or its permitted successors and assigns, or any
successor Servicer under the Servicing Agreement.
“Servicing Agreement”
means the Servicing Agreement, dated as of February __, 2010, between the
Purchaser and the Servicer, as amended, modified or supplemented from time to
time, including all exhibits and schedules thereto.
“Settlement Agreement”
means a Settlement Agreement entered into between a Claimant and a Settlement
Counterparty evidencing, among other things, the obligation of the Settlement
Counterparty to make the scheduled payments to the Claimant thereunder as
compensation by the Settlement Counterparty for a tort, injury or other
claim.
“Settlement
Counterparty” means any Person (and any guarantor thereof) that is
obligated (or has assumed the obligation) to make scheduled payments to a
Claimant under a Settlement Agreement.
“Settlement Payments”
means all payments due to the Claimant under the terms of a Settlement Agreement
or Annuity Contract, as the case may be, which have been sold by such Claimant
to the Seller (or to a Subsidiary Originator and subsequently transferred to the
Seller).
“Subsidiary
Originator” means (i) Tort Victim’s Assistance Finance Company, LLC, a
Virginia limited liability company, (ii) Settlement Funding of New York, LLC, a
New York limited liability company, and (iii) Tort Victim’s Assistance Finance
Company of West Virginia, LLC, a West Virginia limited liability
company.
“Supplement” means a
supplement to Exhibit
A to the Purchase and Sale Agreement, in the form of Exhibit A-1 to the
Purchase and Sale Agreement.
“Structured
Settlement” means an arrangement satisfying all applicable requirements
of Section 104 of the Internal Revenue Code in which Settlement Payments are
disbursed over a specified period of time as compensation for an injury, damage
or other claim settlement.
“Trust” has the
meaning set forth in the Recitals.
“Trust Agreement” has
the meaning set forth in the Recitals.
“Trust Assets” means:
(i) any capital contributed to the Trust by the Grantor or UTI Certificateholder
and (ii) assets conveyed to the Trust (either for and with respect to itself or
for and with respect to any SUBI, as the case may be) pursuant to the Purchase
and Sale Agreement, similar purchase and sale agreements or otherwise and
related documents and agreements and all proceeds thereof.
(c) All
terms used in Article 9 of the UCC in the State of Delaware, and not
specifically defined herein, are used herein as defined in such Article
9.
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SECTION
2 Pledge; Grant of Security
Interest.
(a) To
secure the due and punctual payment and performance of the Obligations, the
Pledgor hereby pledges, assigns, hypothecates, transfers, sets over and delivers
unto Secured Party, and hereby grants to Secured Party a first priority
perfected Security Interest in, all right, title and interest of the Pledgor in,
to and under the following property wherever located, whether now or hereafter
existing, owned, licensed, leased, consigned, arising or acquired:
(i) The
Rochdale SUBI Certificate, the beneficial interest in the Rochdale SUBI Assets
represented thereby (regardless of whether the aggregate value of the foregoing
exceeds the amount due to Secured Party under the Note) and any related rights,
authority, powers and privileges of the holder thereof under the Related
Documents (including all covenants and warranties in favor of Pledgor and all
other rights and remedies of Pledgor under the Rochdale SUBI Supplement) and all
payments and distributions thereunder of whatever kind or character and whether
in cash or other property, at any time made or distributable to Pledgor
thereunder or in respect thereof, whether due or to become due, including,
without limitation, the immediate and continuing right of Pledgor to receive and
collect all amounts and any other payments and the right of Pledgor to exercise
any election or option or to make any decision or determination or to give or
receive any notice, consent, waiver or approval or to consent to any amendment,
modification or waiver or to make any claims or demands under or to take any
other action provided under or in respect of any of the Related Documents,
including all the rights and powers of Pledgor to terminate such agreements and
exercise all rights and remedies thereunder, including, without limitation, the
commencement, conduct and consummation of legal, administrative and other
proceedings as permitted thereunder or by law or in equity;
(ii) The
Collection Account and any other deposit account opened and maintained for the
Rochdale SUBI in accordance with the Rochdale SUBI Supplement or any other
Related Document; and
(iii) All
present and future rights, claims, demands and causes of action in respect of
any or all of the foregoing and all rents, issues, profits, revenues or other
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, and
all rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute all or
part of or are included in the products and proceeds of any of the foregoing
(the property described in the foregoing clauses (i) through (iii), the “Collateral”).
SECTION
3 Pledgor to Remain
Liable. The Pledgor hereby expressly agrees that, anything
herein to the contrary notwithstanding, it shall remain liable under each
contract, agreement, interest or obligation collaterally assigned to Secured
Party hereunder to observe and perform all of the conditions and obligations to
be observed and performed by the Pledgor thereunder, all in accordance with and
pursuant to the terms and provisions thereof. The exercise by Secured
Party of any of the rights assigned hereunder shall not release the Pledgor from
any
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of its
duties or obligations under any such contract, agreement, interest or
obligation. Secured Party shall not have any duty, responsibility,
obligation or liability under any such contract, agreement, interest or
obligation by reason of or arising out of the assignment thereof to Secured
Party or the granting to Secured Party of a Security Interest therein or the
receipt by Secured Party of any payment relating to any such contract,
agreement, interest or obligation pursuant hereto, nor shall Secured Party be
required or obligated in any manner to perform or fulfill any of the obligations
of the Pledgor thereunder or pursuant thereto, or to make any payment, or to
make any inquiry as to the nature or sufficiency of any payment received by it
or the sufficiency of any performance of any party under any such contract,
agreement, interest or obligation, or to present or file any claim, or to take
any action to collect or enforce any performance or the payment of any amounts
which may have been assigned to it, in which it may have been granted a Security
Interest or to which it may be entitled at any time or times.
SECTION
4 Delivery of the
Collateral. All certificates or instruments representing or
evidencing the Rochdale SUBI, shall be delivered by Pledgor to and held by or on
behalf of Secured Party pursuant hereto, shall be in suitable form for transfer
by delivery, and shall be accompanied by all necessary instruments of transfer
or assignment, duly executed in blank. Concurrently with the delivery to the
Secured Party of the Rochdale SUBI Certificate, Pledgor shall deliver to Secured
Party (i) an undated written instrument of transfer in respect of such
certificate, duly executed in blank by the Pledgor and acknowledged by the
Trustee in the form attached hereto as Schedule II, and (ii)
any other instruments or documents as reasonably requested by the Secured
Party.
SECTION
5 Continuing Security
Interest; Transfer of Note. This Agreement shall create a
continuing Security Interest in Secured Party in the Collateral and
shall:
(i) remain
in full force and effect until indefeasible payment in full and performance of
the Note,
(ii) be
binding upon Pledgor and its successors, transferees and assigns,
and
(iii) inure,
together with the rights and remedies of Secured Party hereunder, to the benefit
of Secured Party and its respective successors and permitted
assigns.
Without
limiting the foregoing, except as otherwise expressly permitted by the Note
Purchase Agreement, the Secured Party may not assign or otherwise transfer (in
whole or in part) the Note held by it to any other Person or entity without the
Pledgor’s prior written consent (which consent shall not be unreasonably
withheld, conditioned or delayed), and such other Person or entity shall
thereupon become vested with all the rights and benefits in respect thereof
granted to the Secured Party under the Note Purchase Agreement or any other
Related Document (including this Agreement) or otherwise, subject, however, to
any contrary provisions in such assignment or transfer, and to the provisions of
the Note Purchase Agreement concerning transfers, assignments and
participations. Upon the indefeasible payment in full and performance
of the Note, the Security Interest granted herein shall terminate and all rights
to the Collateral shall revert to Pledgor. Upon any such termination,
Secured Party will, at Secured Party’s sole expense, deliver to Pledgor, without
any representations, warranties or recourse of any kind whatsoever, all
certificates and instruments representing or evidencing the
Collateral,
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together
with all other Collateral held by Secured Party hereunder, and execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination.
SECTION
6 Security Interest
Absolute. All rights of Secured Party and the Security
Interest granted to Secured Party hereunder, and all obligations of Pledgor
hereunder, shall be absolute and unconditional, irrespective of:
(a) any
lack of validity or enforceability of the Note Purchase Agreement, the Note or
any other Related Document,
(b) the
failure of Secured Party:
(i) to
assert any claim or demand or to enforce any right or remedy against Pledgor or
any other Person under provisions of the Note Purchase Agreement, the Note, any
other Related Document or otherwise, or
(ii) to
exercise any right or remedy against any other guarantor of, or
collateral securing, the Note,
(c) any
change in the time, manner or place of payment of, or in any other term of, the
Note,
(d) any
reduction, limitation, impairment or termination of the Note for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and Pledgor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the Note or
otherwise,
(e) any
amendment to, rescission, waiver, or other modification of, or any consent to
departure from, any of the terms of the Note Purchase Agreement, the Note or any
other Related Document,
(f) any
addition, exchange, release, surrender or non-perfection of any
collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty, for the
Note, or
(g) any
other circumstances that might otherwise constitute a defense available to, or a
legal or equitable discharge of, Pledgor, any surety or any
guarantor.
SECTION
7 Representations, Warranties
and Covenants. The Pledgor represents and warrants to, and
covenants and agrees with, Secured Party that:
(a) It
is a limited liability company duly organized under the laws of the State of
Delaware and has not transferred to, domesticated in or continued in any
jurisdiction other than the State of Delaware.
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(b) The
Rochdale SUBI Certificate has been duly authorized, executed and delivered and
represents a valid beneficial interest in the Rochdale SUBI Assets, entitled to
the benefits provided by the Trust Agreement and the Rochdale SUBI
Supplement.
(c) The
Rochdale SUBI Certificate represents a 100% beneficial interest in all Rochdale
SUBI Assets.
(d) It
is the record and beneficial owner of, and has good and marketable title to, the
Rochdale SUBI Certificate, free and clear of any and all adverse claims or
options in favor of, or claims of, any other Person, except the Security
Interest created by this Agreement. Other than the Security Interest
granted to the Secured Party pursuant to this Agreement, the Pledgor has not
pledged, assigned, sold, granted a Security Interest in, or otherwise conveyed,
any interest in the Rochdale SUBI Certificate. The Pledgor has not
authorized the filing of and is not aware of any financing statements against
the Pledgor that include a description of collateral covering any interest in
the Rochdale SUBI Certificate or any other Collateral, other than any financing
statements relating to the Security Interest granted to the Secured Party
hereunder. The Pledgor has no knowledge of any judgment lien or tax
lien against the Pledgor. The Pledgor is duly authorized and has all
necessary power and legal right under the Trust Agreement and the Rochdale SUBI
Supplement to enter into this Agreement, to pledge to the Secured Party the
Rochdale SUBI Certificate and to grant to the Secured Party a perfected and
first priority Security Interest in the Rochdale SUBI
Certificate. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under, the Trust Agreement
or the Rochdale SUBI Supplement.
(e) The
execution and delivery of this Agreement by the Pledgor, together with the
delivery by the Pledgor to the Secured Party of the Rochdale SUBI Certificate
creates a perfected and first priority Security Interest in the Rochdale SUBI
Certificate and the other Collateral in favor of the Secured Party securing
payment of the Note.
(f) It
has received all consents and approvals, if any, required for (i) the transfer
to the Secured Party all of the Pledgor’s rights, titles and interests in and to
the Rochdale SUBI Certificate and the other Collateral, (ii) the due execution,
delivery and performance by the Pledgor of this Agreement, and (iii) the
exercise by the Secured Party of the remedies in respect of the Rochdale SUBI
Certificate and the other Collateral pursuant to the Note Purchase Agreement and
this Agreement.
(g) Upon
delivery to Secured Party of the Rochdale SUBI Certificate, assuming the
continuing possession by Secured Party of the Rochdale SUBI Certificate, the
Security Interest created by this Agreement in the Rochdale SUBI Certificate
will constitute a valid, perfected first priority Security Interest in the
Rochdale SUBI Certificate, in favor of Secured Party, enforceable in accordance
with its terms against all creditors of the Pledgor and any Persons purporting
to purchase the Rochdale SUBI Certificate from the Pledgor. Upon the
filing of a UCC-1 financing statement with the Office of the Secretary of State
of the State of Delaware in favor of Secured Party, as secured party, and naming
Pledgor, as debtor, with respect to the Collateral, the Security Interest
created by this Agreement in the Collateral other than the Rochdale SUBI
Certificate will constitute a valid, perfected first priority Security Interest
in such
12
Collateral
in favor of Secured Party enforceable in accordance with its terms against all
creditors of the Pledgor and any Persons purporting to purchase such Collateral
from the Pledgor, to the extent such a Security Interest may be perfected by the
filing of a financing statement under the UCC.
(h) It
shall not, and shall not permit the Trustee to, (i) amend, modify, terminate,
replace or waive any provision of the Rochdale SUBI Supplement or (ii) create,
incur or permit to exist any lien or encumbrance with respect to the Rochdale
SUBI Certificate, any part of the Rochdale SUBI or any other Rochdale SUBI Asset
(in each case except for the security interest created by this Agreement), in
each case, without the prior written consent of the Secured Party.
(i) The
Pledgor is an organization within the meaning of Section 9-307(b) of the UCC, is
organized under the laws of the State of Delaware, and has its chief
executive office and principal place of business located at [____________]. The Pledgor’s exact
name is set forth in the introductory paragraph of this Agreement, and Pledgor
has not utilized any trade names in the conduct of its business nor has any
other trade names. Pledgor has not been a party to any merger or
change of organizational structure during the five year period ending as of the
date hereof. A true and correct copy of the Commercial Register
regarding the Pledgor is attached as Exhibit “A” and has
not been modified or amended.
SECTION
8 Covenants of the
Pledgor. The Pledgor covenants and agrees with the Secured
Party that, from and after the date of this Agreement until this Agreement is
terminated and the Security Interests created hereby are released, it
will:
(a) Keep
all books and records relating to the Collateral at the address listed on Schedule I
hereto.
(b) Furnish
Secured Party such information concerning the Pledgor and the Collateral as
Secured Party may from time to time reasonably request.
(c) Defend
in a commercially reasonable manner its title to the Collateral against all
Persons and against all claims and demands whatsoever.
(d) With
respect to all Collateral, do all acts reasonably necessary to maintain,
preserve and protect all such Collateral, and prevent any waste or unusual or
unreasonable depreciation thereof.
(e) Permit
Secured Party and designees of Secured Party, from time to time, to inspect the
Collateral at reasonable times upon reasonable prior notice to
Pledgor.
(f) Upon
request of Secured Party, stamp on the Pledgor’s records (and require that each
of the Servicer and the Trustee stamp on its records) concerning the Collateral
(and/or enter into its computer records concerning the Collateral), a notation,
in form reasonably satisfactory to Secured Party, of the Security Interest
created thereby.
(g) Furnish
to Secured Party notice in writing as soon as possible and in any event not
later than thirty (30) days prior to the occurrence from time to time of any
change in its name or the name under or by which it conducts its business,
organizational identification number,
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jurisdiction
of organization, type of organization or other legal structure, each of such
notices also to contain evidence that the Pledgor has taken all action required
or reasonably desirable to maintain and preserve the first priority perfected
Security Interests in favor of Secured Party in the Collateral, free and clear
of any other Security Interest or encumbrance whatsoever.
(h) At
its sole expense, execute and deliver, or cause to be executed and delivered, to
Secured Party, in due form for filing or recording (and pay the cost of filing
or recording the same in all public offices deemed necessary or advisable by
Secured Party) such assignments (including, without limitation, assignments of
life insurance or annuity contracts), security agreements, mortgages, deeds of
trust, pledge agreements, consents, waivers, financing statements, stock or bond
powers, and other documents, and do such other acts and things, all as may from
time to time be necessary or desirable to establish and maintain to the
satisfaction of Secured Party a valid first priority perfected Security Interest
in all Collateral of the Pledgor now or hereafter existing or acquired (free of
all other liens, claims and rights of third parties whatsoever) to secure
payment and performance of the Note.
(i) At
Secured Party’s request after the occurrence and during the continuance of an
Event of Default, transfer (or cause the Servicer to transfer) all or any part
of the Collateral into the name of Secured Party or its nominee, with or without
disclosing that such Collateral is subject to the Security Interest hereunder
and notify the Servicer to make distributions to Secured Party of any amount due
or to become due in respect of the Rochdale SUBI or the Rochdale SUBI
Certificate.
(j) Not
take or fail to take any action which would reasonably be expected in any manner
impair the enforceability of Secured Party’s Security Interest in any
Collateral.
(k) Take
such actions as to ensure that the Rochdale SUBI Certificate shall represent a
100% beneficial interest in all Rochdale SUBI Assets.
(l) Not,
without the prior written consent of the Secured Party, (a) take any action to
(i) cause the Rochdale SUBI to issue or the Trustee to cause to be duly executed
any additional certificates representing interests in any Rochdale SUBI Assets
or (ii) cause the Trustee to register the Rochdale SUBI Certificate in the name
of any Person other than the Pledgor or the Secured Party, (b) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Rochdale SUBI Certificate or any Rochdale SUBI Assets, (c) create, incur
or permit to exist any Security Interest or option, or any claim of any Person,
on or with respect to the Rochdale SUBI Certificate, any Rochdale SUBI Assets or
any other Collateral, except for the Security Interests created by this
Agreement or (d) enter into any agreement or undertaking (other than the Related
Documents, the Trust Agreement and the Rochdale SUBI Supplement) restricting the
right or ability of the Pledgor or the Secured Party to pledge, sell, assign or
transfer the Rochdale SUBI Certificate or the other Collateral.
(m) Pay,
and shall hold the Secured Party harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to be payable with
respect to the Rochdale SUBI Certificate or the other Collateral or in
connection with any of the transactions contemplated by this
Agreement.
14
(n) Not
agree to any amendment of the Trust Agreement or the Rochdale SUBI Supplement
without the prior written consent of the Secured Party.
(o) Concurrently
with the delivery to the Secured Party of the Rochdale SUBI Certificate, cause
the Trustee to make a notation of the pledge of the Rochdale SUBI Certificate to
the Secured Party on the Certificate Register.
(p) Timely
and fully perform and comply with all provisions, covenants and other promises
required to be observed by it with respect to the Rochdale SUBI Certificate and
all other agreements related to the Rochdale SUBI Certificate pursuant to their
respective terms, and will do nothing to impair the rights of the Secured Party
in, to and under the Rochdale SUBI Certificate.
(q) The
Pledgor will at all times cause the Security Interest granted pursuant to this
Agreement to constitute a valid perfected first priority security interest in
the Rochdale SUBI Certificate, enforceable as such against all creditors of the
Pledgor and any Persons purporting to purchase any Rochdale SUBI Certificate
from the Pledgor. The Pledgor agrees that, from time to time upon the
written request of the Secured Party, the Pledgor will execute and deliver such
further documents and diligently perform such other acts and things in any
jurisdiction as the Secured Party may reasonably request in order to (a) grant
more effectively a security interest in favor of the Secured Party in all or any
portion of the Rochdale SUBI Certificate, (b) maintain, preserve, or perfect the
security interest and Lien created or purported to be created by this Agreement
and the first priority status of such security interest and Lien, (c) preserve
and defend against any Person the Pledgor’s title to the Rochdale SUBI
Certificate and the rights purported to be granted therein by this Agreement,
(d) enable the Secured Party to exercise and enforce its rights and remedies
hereunder, (e) notify the Secured Party as soon as it has knowledge or
reasonable belief that the value of the Rochdale SUBI Certificate has been or
may be materially impaired, (f) at all times act in good faith and in a lawful
manner with respect to the Rochdale SUBI Certificate for the benefit of the
Secured Party and (g) carry out more effectively the purposes of this Agreement,
including (i) executing one or more financing statements pursuant to the Code
naming the Secured Party as secured party, (ii) executing any control agreements
with respect to Rochdale SUBI Certificate, in each case naming the Secured Party
as secured party, (iii) executing such other filings required under the laws of
all jurisdictions necessary or reasonably deemed appropriate in the judgment of
the Secured Party to perfect or evidence the Secured Party’s first priority
security interest in and Lien on the Rochdale SUBI Certificate, and (iv) causing
any third party holding Rochdale SUBI Certificate to acknowledge in a signed
writing that such third party holds such Rochdale SUBI Certificate solely on
behalf of, and for the sole benefit of, the Secured Party. In the
event the Pledgor’s compliance with this Section 8(q) requires any action by the
Pledgor not required, or deemed advisable by the Secured Party based on the
advice of counsel, under Applicable Law, the Secured Party shall be responsible
for all reasonable costs (including the Pledgor’s legal fees) associated with
such action
SECTION
9 Renewals, Amendments and
Other Security; Partial Releases.
(a) Secured
Party may from time to time, whether before (except with respect to clause
(v) below) or after any of the Obligations shall become due and payable, without
notice to the Pledgor (except, in the case of the actions described in clause
(i) below, any notice to and/or
15
consent
by the Pledgor as shall be otherwise required in connection with any actions
being taken by Secured Party to retain or obtain a Security Interest in any
property of the Pledgor), take any or all of the following actions without
impairing any of the rights of Secured Party under this
Agreement: (i) retain or obtain a Security Interest in any property
to secure payment and performance of any of the Obligations, (ii) retain or
obtain the primary or secondary obligation of any Person, in addition to the
Pledgor, with respect to any of the Obligations, (iii) create, extend or renew
for any one or more periods (whether or not longer than the original period) or
alter or exchange any of the Obligations or release or compromise any obligation
of any nature of any Person with respect thereto, (iv) release or fail to
perfect its Security Interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Obligations, or create, extend or renew for any one or more periods (whether
or not longer than the original period) or release, compromise, alter or
exchange any obligation of any nature of any Person with respect to any such
property, and (v) resort to the Collateral for payment of any of the Obligations
whether or not it (A) shall have resorted to any other property securing payment
and performance of the Note, or (B) shall have proceeded against any Person
primarily or secondarily liable on the Note (all of the actions referred to in
preceding clauses
(A) and (B) being hereby
expressly waived by the Pledgor).
(b) No
release from the Security Interest created by this Agreement of any part of the
Collateral by Secured Party shall in any way alter, vary or diminish the force
or effect of the Security Interest created by this Agreement against the balance
or remainder of the Collateral.
SECTION
10 Grant of License to Use
Intangibles. Solely for the purpose of enabling Secured Party
to exercise rights and remedies hereunder at such time as Secured Party, without
regard to this Section
10, shall be lawfully entitled to exercise such rights and remedies, the
Pledgor hereby grants to Secured Party an irrevocable, nonexclusive,
transferable license (exercisable without payment of royalty or other
compensation to the Pledgor) to use, assign, license or sublicense any of the
Pledgor’s general intangibles and all books, ledgers, books of account, records,
writings, data bases and information relating to the Collateral (the “Collateral
Information”), now owned or hereafter acquired by the Pledgor, and
wherever the same may be located, including in such license reasonable access as
to all premises in which any of such general intangibles or Collateral
Information may be located or accessible, to all media in which any of the
licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof; provided, however, that it is
expressly understood and agreed by the parties hereto that the grant of the
license shall extend only to such items as Secured Party shall determine are
necessary to enable Secured Party to exercise rights and remedies hereunder at
such time as Secured Party, without regard to this Section 10, shall be
lawfully entitled to exercise such rights and remedies and Secured Party hereby
agrees to cooperate with the Pledgor to establish mutually satisfactory
arrangements with respect to sharing access to any of such general intangibles
that are used by the Pledgor or Servicer in connection with their respective
businesses other than that related to the Receivables and related Rochdale SUBI
Assets. No agreements hereafter acquired or agreed to or entered into
by the Pledgor, and nothing contained elsewhere in this Agreement, shall
prohibit, restrict or impair the rights granted hereunder.
SECTION
11 Information. Secured
Party and any of the officers, employees, agents,
legal counsel or auditors of Secured Party shall have the right at reasonable
intervals after the date hereof to make reasonable inquiries by mail, telephone,
telegraph or otherwise to any
16
Person
with respect to validity and amount or any other matter (including, without
limitation, the assertion by obligors of claims, offsets and counterclaims)
concerning any of the Collateral.
SECTION
12 Event of
Default. The Pledgor shall be in default under this Agreement and an
event of default (an “Event of Default”)
shall exist hereunder upon the occurrence of any of the following events or
conditions:
(a) An
“Event of Default” (as such term is defined in the Note Purchase Agreement)
shall have occurred and is continuing under the Note Purchase
Agreement.
(b) The
Pledgor shall fail to observe or perform any covenant, condition or agreement on
its part to be performed pursuant to the terms of this Agreement.
(c) Any
representation, warranty or statement made or furnished in writing herein or
pursuant hereto to the Secured Party by or on behalf of the Pledgor shall prove
to have been false or misleading in any material respect when made or
furnished.
(d) The
Secured Party shall fail to have a perfected first priority Security Interest in
the Rochdale SUBI Certificate.
(e) (i)
An involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect shall be commenced against the Pledgor, the Trust
or the Rochdale SUBI, and any petition in connection therewith shall not be
dismissed within 60 days after commencement of the case, or a court having
jurisdiction in the premises shall enter a decree or order for relief in respect
of the Pledgor, the Trust or the Rochdale SUBI in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect, or any other similar relief shall be granted under any applicable
federal, state or foreign law; (ii) a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Pledgor, the Trust or the Rochdale SUBI, or over all or a substantial part of
the property of the Pledgor, the Trust or the Rochdale SUBI shall be entered, or
an interim receiver, trustee or other custodian of the Pledgor, the Trust or the
Rochdale SUBI of all or a substantial part of the property of the Pledgor, the
Trust or the Rochdale SUBI, if any, shall be appointed, or a warrant of
attachment, execution or similar process against any substantial part of the
property of the Pledgor, the Trust or the Rochdale SUBI shall be issued, and any
of the foregoing events shall not be stayed, vacated, dismissed, bonded or
discharged within 60 days of entry, appointment or issuance; or (iii) the
Pledgor, the Trust or the Rochdale SUBI shall have an order for relief entered
with respect to it or shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking of possession by a receiver,
trustee or other custodian for all or a substantial part of its property, the
Pledgor, the Trust or the Rochdale SUBI shall make any assignment for the
benefit of creditors, or any governing body of the Pledgor or the Trust shall
have adopted any resolution or otherwise shall
have authorized any action to approve any of the foregoing.
17
(f) The
Rochdale SUBI shall cease to constitute a separate series of the Trust under and
in accordance with the laws of the State of Delaware; or the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other series or special units thereof
become enforceable against the Rochdale SUBI Assets.
(g) For
any reason this Agreement shall cease to be in full force and effect at any time
prior to its scheduled termination in accordance with Section 16 hereof, or
the Pledgor or any of its Affiliates shall institute an action seeking a
determination that this Agreement shall not be in full force and effect, or any
action shall be taken by the Pledgor or any of its Affiliates to discontinue
this Agreement or to assert the invalidity of this Agreement.
SECTION 13 Remedies.
(a) (i) Whenever
an Event of Default shall be existing, Secured Party may exercise from time to
time any rights and remedies available to it hereunder and under the Note
Purchase Agreement and the Related Documents and under the UCC, or otherwise
available to it under applicable law or
equity. The Pledgor hereby expressly waives, to the
fullest extent permitted by applicable law, any and all notices, advertisements,
hearings, or process of law in connection with the exercise by Secured Party of
any of its rights and remedies after an Event of Default occurs.
(ii) The
Pledgor agrees, upon the occurrence of an Event of Default and upon the request
of Secured Party, to assemble, at such Pledgor’s expense, all Collateral at a
convenient place acceptable to Secured Party.
(iii) To
the fullest extent permitted by applicable law, the Pledgor hereby waives the
right to object to the manner or sufficiency of advertising or solicitation of
bids in connection with any sales or other disposition of the
Collateral. Any sale by Secured Party may be made at any broker’s
board or public or private sale, with or without notice or advertisement, for
cash or credit, and for present or future delivery. At any such
public or private sale or other disposition of Collateral, Secured Party may, to
the extent permissible under applicable law, transfer the whole or
any part of any Collateral sold, or may sell or dispose of the Collateral to any
other Person, free from any and all claims of the Pledgor or of any other Person
claiming by, through, or under the Pledgor. The Pledgor hereby
expressly waives and releases, to the fullest extent permitted by applicable
law, any right of redemption. If any notification of intended
disposition of any of the Collateral is required by law, such notification, if
mailed, shall be deemed reasonably and properly given if mailed at least five
(5) days before such disposition, postage prepaid, addressed to
the Pledgor either at the address shown below, or at any other
address of Pledgor appearing on the records of Secured Party. Any
proceeds of any Collateral, or of the disposition by Secured Party of any of the
Collateral, may be applied by Secured Party to the payment of expenses in
connection with the Collateral, including attorneys’ fees and legal expenses,
and any balance of such proceeds may be applied by Secured Party toward the
payment of the Note in the order of application specified in the Note Purchase
Agreement.
18
(b) Without
limiting any other provision of this Agreement: whenever an Event of
Default shall be existing, Secured Party, with or without process of law, may
enter upon any premises where the Collateral or any part thereof may be, and
take possession of all or any part thereof; and Secured Party may, without being
responsible for loss or damage, hold, store, keep idle, lease, operate or
otherwise use or permit the use of the Collateral or any part thereof for such
time and upon such terms as Secured Party may deem to be reasonable, or may
render all or part of the Collateral unusable, and may demand, collect and
retain all earnings and all other sums due and to become due in respect of the
Collateral from any Person whomsoever, accounting only for net earnings, if any,
arising from use or from the sale thereof after charging against all receipts
from use or from the sale thereof all costs and expenses of, and damages or
losses by reason of, such use or sale.
(c) The
Pledgor hereby agrees to pay any and all reasonable expenses incurred by Secured
Party in retaking, holding, preparing for sale, selling and the like with regard
to the Collateral, including, without limitation, reasonable attorneys’ fees
incurred by Secured Party in connection therewith.
(d) The
Pledgor agrees that in any sale of any of the Collateral, the Secured Party is
authorized to comply with any limitation or restriction in connection with such
sale as counsel may advise Secured Party is necessary in order to avoid any
violation of applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders or transferees,
require that such prospective bidders and transferees have certain
qualifications, and restrict such prospective bidders and transferees to Persons
who will represent and agree that they are purchasing for their own account or
investment and not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the sale or of the
transferee by any governmental or regulatory authority or official, and the
Pledgor further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall Secured Party be liable or accountable to the Pledgor for any discount
allowed by reason of the fact that such Collateral was sold in compliance with
any such limitation or restriction.
(e) No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, but every such right or remedy shall be cumulative and shall be in
addition to every other right or remedy herein conferred, or conferred upon
Secured Party by any other agreement or instrument or security, now or hereafter
existing at law or in equity or by statute.
SECTION
14 Irrevocable Instruction and
Authorization to Trustee. The parties hereto agree that until
such time as the Trustee receives written notice from the Secured Party that the
Pledgor is in default (a “Default Notice”),
upon which notice the Trustee may rely without inquiry or investigation, the
Pledgor, as Holder of the Rochdale SUBI Certificate, shall be entitled to all
voting and other rights attributable to the Holder of such Rochdale SUBI
Certificate as set forth in the Trust Agreement and the Rochdale SUBI
Supplement. The parties hereby further agree that from and after
receipt by the Trustee of a Default Notice, the Pledgor, as Holder of the
pledged Rochdale SUBI Certificate, shall not be entitled to any such rights
without the prior written consent of the Secured Party. The Pledgor
hereby authorizes and instructs the Trustee to comply with a Default Notice
received by it from Secured Party that (i) states that an Event of Default has
occurred and is continuing and (ii) states that the instructions or other
actions contained therein are in accordance with the terms of this Agreement and
any other Related Document, and are also deemed to constitute instructions from
or other actions by
19
the
Pledgor, without any other or further instruction from or actions by the
Pledgor, and the Pledgor agrees that the Trustee shall be fully protected in,
and have no liability as a result of, so complying.
SECTION
15 Authority of Secured
Party.
(a) Secured
Party shall have, and be entitled to exercise, all such powers hereunder as are
specifically delegated to Secured Party by the terms hereof, together with such
powers as are incidental thereto. Secured Party may execute any of
its duties hereunder by or through agents or employees and shall be entitled to
retain counsel and to act in reliance upon the advice of such counsel concerning
all matters pertaining to its duties hereunder. Neither Secured
Party, nor any director, officer or employee of Secured Party, shall be liable
for any action taken or omitted to be taken by it hereunder or in connection
herewith, except for its own gross negligence or willful misconduct. The Pledgor
agrees to reimburse Secured Party, on demand, for all reasonable costs and
expenses incurred by Secured Party in connection with the administration and
enforcement of this Agreement (including costs and expenses incurred by any
agent employed by Secured Party (including, without limitation, reasonable
attorneys’ fees and expenses)), provided that the Pledgor shall have received a
detailed written invoice outlining any such costs and expenses, and agrees to
indemnify (which indemnification shall survive any termination of this
Agreement) and hold harmless Secured Party (and any such agent) from and against
any and all liability incurred by Secured Party (or such agent) hereunder or in
connection herewith, unless such liability shall be due to gross negligence or
willful misconduct on the part of Secured Party or such agent, as the case may
be.
(b) Secured
Party may from time to time, without notice to the Pledgor, at its option,
perform any obligation to be performed by the Pledgor hereunder or under the
Note Purchase Agreement which shall not have been performed by the Pledgor after
reasonable notice by Secured Party and not cured by the Pledgor within five (5)
Business Days following the date of such notice, and take any other action which
Secured Party deems necessary for the maintenance or preservation of any of the
Collateral or its Security Interest in the Collateral. All moneys
advanced by Secured Party in connection with the foregoing shall, whether or not
the Note Purchase Agreement is in effect, bear interest at a rate equal to the
Default Rate, and shall be repaid together with such interest by the Pledgor to
Secured Party, upon Secured Party’s demand, and shall be secured hereby prior to
any other indebtedness or obligation secured hereby, but the making of any such
advance by Secured Party shall not relieve the Pledgor of any default hereunder
or thereunder.
SECTION
16 Termination. Unless
terminated earlier pursuant to a written instrument executed by the Pledgor and
the Secured Party , this Agreement shall terminate when the Note Purchase
Agreement shall be terminated and the Obligations have been indefeasibly fully
paid and performed, at which time Secured Party shall reassign and redeliver (or
cause to be reassigned and redelivered) to the Pledgor, or to such person as the
Pledgor shall designate, against receipt, such of the Collateral (if any) as
shall not have been sold or otherwise applied by Secured Party pursuant to the
terms hereof and shall still be held by it hereunder, together with appropriate
instruments of reassignment and release. Any such reassignment shall
be without recourse upon, or representation or warranty by, Secured Party and at
the sole cost and expense of the Pledgor. Upon any such termination, the
Secured Party will, at the Pledgor’s expense,
20
execute
and deliver to the Pledgor such documents and take such further action as the
Pledgor shall reasonably request to evidence such termination.
SECTION
17 Secured Party’s Appointment
as Attorney-In-Fact. The Pledgor hereby irrevocably
constitutes and appoints the Secured Party and any officer or agent of the
Secured Party, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in the Secured Party’s
own name, from time to time in the Secured Party’s discretion, for the purpose
of carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this
Agreement. This power being coupled with an interest is
irrevocable.
SECTION
18 Duty of Secured
Party. The Secured Party’s sole duty with respect to the
custody, safekeeping and physical preservation of the Rochdale SUBI Certificate
in its possession shall be to deal with it in the same manner as the Secured
Party deals with similar securities and property for its own
account. Neither the Secured Party nor any of its directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon the Rochdale SUBI Certificate or for any delay in doing so or shall
be under any obligation to sell or otherwise dispose of the Rochdale SUBI
Certificate upon the request of the Pledgor or any other Person or to take any
other action whatsoever with regard to the Rochdale SUBI Certificate or any part
thereof.
SECTION
19 Execution of Financing
Statements. The Pledgor authorizes the Secured Party to file
financing statements with respect to the Rochdale SUBI Certificate, in such form
and in such filing offices as the Secured Party reasonably determines
appropriate to perfect the security interests of the Secured Party under this
Agreement.
SECTION
20 Authority of Secured
Party. The Pledgor acknowledges that the rights and
responsibilities of the Secured Party under this Agreement with respect to any
action taken by the Secured Party or the exercise or non-exercise by the Secured
Party of any right or remedy provided for herein or resulting or arising out of
this Agreement shall be governed by the Note Purchase Agreement and by such
other agreements with respect thereto as may exist from time to time among
them.
SECTION
21 Notices. All notices,
requests and demands to or upon the Secured Party or the Pledgor to be effective
shall be in writing (or by facsimile or similar electronic transfer confirmed in
writing) and shall be deemed to have been duly given or made (a) when
delivered by hand or (b) if given by mail, when deposited in the mails by
certified mail, return receipt requested, or (c) if by facsimile or electronic
transfer, when sent and receipt has been confirmed, addressed to the Secured
Party or the Pledgor at its address or transmission number for notices as set
forth below its signature hereto.
SECTION
22 Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and
21
any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION
23 Amendments in Writing; No
Waiver; Cumulative Remedies.
(a) None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Secured Party, provided that any
provision of this Agreement may be waived by the Secured Party in a letter or
agreement executed by the Secured Party.
(b) No
failure to exercise, nor any delay in exercising, on the part of the Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Secured Party would
otherwise have on any future occasion.
(c) The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
SECTION
24 Section Headings. The
section headings used in this Agreement are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
SECTION
25 Successors and
Assigns. This Agreement shall be binding upon the successors and assigns
of the Pledgor and shall inure to the benefit of the Secured Party and its
successors and assigns.
SECTION
26 Governing Law; Submission to
Jurisdiction.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
(b) EACH
PARTY IRREVOCABLY AGREES THAT ANY ACTION OR PROCEEDING IN ANY WAY, MANNER OR
RESPECT ARISING OUT OF THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH, OR ARISING FROM ANY DISPUTE OR CONTROVERSY ARISING IN
CONNECTION WITH OR RELATED TO THIS AGREEMENT OR ANY SUCH AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT MAY BE LITIGATED IN COURTS HAVING SITUS WITHIN THE STATE
OF DELAWARE AND EACH PARTY HEREBY CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED IN SUCH
JURISDICTION. EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTIONS IN RESPECT OF THIS
22
AGREEMENT
OR ANY DOCUMENT RELATED HERETO. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO SUCH PARTY AT ITS ADDRESS. NOTHING IN THIS SECTION 26 SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR
PROCEEDING AGAINST ANOTHER PARTY HERETO OR ANY OF ITS PROPERTIES IN THE COURTS
OF ANY OTHER JURISDICTION. THE PLEDGOR WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY DELAWARE LAW.
(c) TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PLEDGOR AND THE
SECURED PARTY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PLEDGOR AND THE SECURED
PARTY AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES
FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
SECTION
27 Consent to Enforcement,
etc. The Pledgor irrevocably and generally consents in respect of any
proceedings anywhere in connection with the Trust Agreement, the Rochdale SUBI
Supplement or any Related Document to the giving of any relief or the issue of
any process in connection with those proceedings including, without limitation,
the making, enforcement or execution against any assets whatsoever (irrespective
of their use or intended use) of any order or judgment which may be made or
given in those proceedings.
SECTION
28 Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall be
considered an original.
SECTION
29 Limited
Recourse. It is expressly understood and agreed by the parties
hereto that (i) this Agreement is acknowledged and agreed to by ▇▇▇▇▇ Fargo
Bank, National Association, not individually or personally, but solely in its
capacity as the Trustee of the Trust in the exercise of the powers and authority
conferred and vested in the Trustee by the Trust, (ii) in no event shall ▇▇▇▇▇
Fargo Bank, National Association, in its individual capacity, have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Trust or the Rochdale SUBI hereunder, as to all of which recourse shall
be had solely to the Trust or the Rochdale SUBI, as the case may be, (iii)
nothing herein contained shall be construed as creating any liability on ▇▇▇▇▇
Fargo Bank, National Association, individually or personally, to perform any
covenant either express or implied contained herein, all such liability,
23
if any,
being expressly waived by the parties hereto and any Person claiming by, through
or under the parties hereto, and (iv) under no circumstances shall ▇▇▇▇▇ Fargo
Bank, National Association be personally liable for the payment of any
indebtedness or expenses of the Trust or the Rochdale SUBI or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by or with respect to the Trust or the Rochdale SUBI.
SECTION
30 Transfer and Assignment of
Rochdale SUBI Certificate. The Rochdale SUBI Certificate shall
not be transferred, assigned or pledged except to the extent specified in the
Trust Agreement or in the Rochdale SUBI Supplement and, to the fullest extent
permitted by applicable law, any such purported transfer, pledge or assignment
other than as so specified shall be deemed null, void and of no effect under
this Agreement. In addition, in connection with any such transfer,
pledge or assignment, the related transferee, assignee or pledgee in each case
must (i) give a non-petition covenant substantially similar to that set
forth in Section
31 and (ii) execute an agreement in favor of each Holder from time
to time of a UTI Certificate and any other SUBI Certificate to release all
Claims to the Trust Assets and/or SUBI Assets associated with the UTI or any
other SUBI and, in the event such release is not given effect, to subordinate
fully all Claims it may be deemed to have against the Trust Assets and/or SUBI
Assets associated with the UTI or any other SUBI. In addition, the
Rochdale SUBI Certificate and any beneficial interest therein may not be
transferred unless (i) the Trust receives an opinion of counsel satisfactory to
the Grantor stating that such transfer is exempt from registration under
applicable state and federal securities laws, will not cause the Trust to be an
“Investment Company” or under the “control” of an “Investment Company” within
the meaning of the Investment Company Act of 1940, as amended, and otherwise
complies with the restrictions on transfer contained in the Trust Agreement and
the Rochdale SUBI Supplement, and (ii) the transferee certifies to the Trust
that it is not (x) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) that is
subject to the provisions of Title I of ERISA, (y) a plan described in Section
4975(e)(1) of the Code or (z) any entity whose underlying assets include plan
assets by reason of a plan’s investment in the Trust (each a “Benefit
Plan”). The Trustee shall have no obligation to determine whether or
not a transferee of the Rochdale SUBI Certificate has complied with the transfer
requirements set forth herein, in the Trust Agreement or in the Rochdale SUBI
Supplement. Each such transfer shall be registrable upon surrender of
the Rochdale SUBI Certificate to be transferred for registration of the transfer
at the corporate trust office of the Trustee, accompanied by a written
instrument of transfer or pledge in form satisfactory to the Trustee duly
executed by the Holder thereof or such Holder’s attorney duly authorized in
writing, and thereupon a new Rochdale SUBI Certificate of a like aggregate
fractional undivided interest will be issued to the designated permitted
transferee or a notation will be made on the Certificate Register of the related
pledge and the identity of the related Registered Pledgee, as the case may
be. By its execution hereof, the Secured Party acknowledges the terms
of this Section 30 and agrees that this Agreement shall constitute the agreement
in favor of each Holder from time to time of a UTI Certificate or any other SUBI
Certificate referred to in clause (ii) of the second sentence of this Section
30.
SECTION
31 No Petition. To the
extent permitted by applicable law, each of the Pledgor and the Secured Party
covenants and agrees that prior to the date which is one year and one day after
the date upon which all obligations under each Certificate have been paid in
full or otherwise satisfied, it will not institute against, or join any other
Person in instituting against
24
the Trust
or the Servicer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. This Section shall survive the termination
of this Agreement; provided
that the foregoing shall not preclude participation by any such party in the
assertion or defense of its claims in any such proceeding involving the Servicer
or the Trust.
SECTION
32 Limitation on Inter-Series
Liability. The Secured Party acknowledges that the Rochdale
SUBI, including the Rochdale SUBI Assets associated therewith, constitutes a
separate series of the Trust pursuant to Section 3806(b)(2) of the Delaware
Statutory Trust Act, 12 Del. C. §§ 3801
et. seq. (the “Delaware Act”). The Servicer shall maintain separate
records for the Rochdale SUBI, and the Rochdale SUBI Assets and any other assets
of the Trust associated therewith shall be held and accounted for separately
from Trust Assets generally or SUBI Assets associated with any other series of
the Trust. Subject to the right of the UTI Certificateholder to
direct the Servicer to allocate certain Liabilities, costs, charges and reserves
as may be provided in the SUBI Supplements, and in accordance with Section
3804(a) of the Delaware Act or to the extent otherwise permitted by applicable
law, all debts, Liabilities and obligations incurred, contracted for or
otherwise existing with respect to the Rochdale SUBI shall be enforceable
against the Rochdale SUBI Assets allocated to such Rochdale SUBI only, and not
against Trust Assets generally or the Trust Assets or SUBI Assets associated
with any other series and the Rochdale SUBI Assets shall not be subject to the
debts, Liabilities or obligations of the Trust generally or any other series of
the Trust.
25
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the date
first above written.
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CRESCIT EUNDO FINANCE I,
LLC, as the Pledgor
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By:______________________________________
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| Name: | |
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Title:
|
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By:______________________________________
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Name:
|
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Title:
|
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Address
for Notices:
|
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Crescit
Eundo Finance I, LLC
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▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
|
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▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
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Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Chief Executive Officer
and
▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
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ROCHDALE STRUCTURED CLAIMS
FIXED INCOME FUND, LLC, as the Secured Party
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By:______________________________________
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Name:
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Title:
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Address
for Notices:
Rochdale
Structured Claims Fixed Income Fund, LLC
c/o
Rochdale Investment Management, LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Senior Executive
Vice
President & General
Counsel
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26
Acknowledged
and agreed to by the Trustee this Agreement this __ day of February,
2010:
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
solely in
its capacity as Trustee of Crescit Eundo Trust
and not
in its individual capacity
By:
____________________________
Name:__________________________
Title:
___________________________
27
SCHEDULE
I
LOCATIONS
OF BOOKS AND RECORDS
SCHEDULE
II
FORM OF
TRANSFER INSTRUMENT
FOR VALUE
RECEIVED, CRESCIT EUNDO FINANCE
I, LLC, a limited liability company organized under the laws of the State
of Delaware, hereby sells, assigns and transfers unto (the “Transferee”) a 100%
beneficial interest in all assets of Rochdale Structured Claims Fixed Income
Fund (the “Rochdale SUBI”), a separate series of Crescit Eundo Trust
(the “Trust”), represented by Special Unit of Beneficial Interest Certificate
No. S-1 (the “Rochdale
SUBI Certificate”) and does hereby instruct ▇▇▇▇▇ Fargo Bank, National
Association (the “Trustee”) to register the transfer of said Rochdale SUBI
Certificate on the books of the Trust and the Rochdale SUBI kept at the
corporate trust office of the Trustee for such purpose, with full power of
substitution in the premises, and to issue to the Transferee a new certificate
of a like aggregate fractional undivided interest in replacement of the Rochdale
SUBI Certificate. This Transfer Instrument is the written instrument
of transfer referred to in Section 3.05(a) of the Trust Agreement, dated as of
February __, 2010, by and among Peach Holdings, LLC, a Delaware limited
liability company, as Grantor and UTI Certificateholder, ▇▇▇▇▇ Fargo Delaware
Trust Company, National Association, as Delaware Trustee, and the Trustee (the
“Trust
Agreement”) and in Section 2.2 of the SUBI Supplement, dated as of
February __, 2010, among the UTI Certificateholder, the Trustee, the Grantor and
the Servicer, creating the Rochdale SUBI.
Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
such terms in the Trust Agreement.
[Signature
Page Follows]
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CRESCIT
EUNDO FINANCE I, LLC
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By: __________________________________
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Name:
________________________________
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Title: _________________________________
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Dated: ___________________
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Accepted
and Agreed:
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
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solely
in its capacity as Trustee and not in its
individual
capacity
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By:
____________________________
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Name:__________________________
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Title:
___________________________
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EXHIBIT
“A”
COPY OF COMMERCIAL
REGISTER