RESERVE ACCOUNT CONTROL AGREEMENT
Exhibit
10.11
EXECUTION
VERSION
This
Reserve Account Control Agreement (this “Account Control
Agreement”) is made as of October [ ], 2007 between Ministry
Partners Funding, LLC, a Delaware limited liability company (the “Borrower”), BMO
Capital Markets Corp., in its capacity as Agent (the “Agent”), and U.S.
Bank National Association, in its capacity as Account Bank (“Account Bank”) and as
securities intermediary (the “Securities
Intermediary”), pursuant to the Loan, Security and Servicing Agreement of
even date herewith (as amended, restated, supplemented or otherwise modified
from time to time, the “Loan Agreement”),
among the Borrower, Fairway Finance Company, LLC, as Lender, Evangelical
Christian Credit Union, as servicer, Agent, Account Bank and Lyon Financial
Services, Inc. (d/b/a U.S. Bank Portfolio Services). Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Loan Agreement.
WHEREAS, pursuant to the Loan
Agreement, it is required that there be established and maintained a Reserve
Account, into which funds are to be transmitted in accordance with the Loan
Agreement;
WHEREAS,
the Reserve Account may be referred to herein as an “Account”;
WHEREAS,
the Agent and the Borrower have requested that the Account Bank establish the
Account to be maintained with the Account Bank, under the sole dominion and
control of the Agent, for the benefit of the Secured Parties;
WHEREAS,
the Borrower has granted a security interest in the Account, all securities
entitlements with respect to the Account, and all assets held in the Account to
the Agent, for the benefit of the Secured Parties, pursuant to the Loan
Agreement; and
WHEREAS,
the parties hereto desire that such security interest shall be a perfected
security interest as provided for herein.
NOW,
THEREFORE, in consideration of the premises set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Account:
(a) Control. Each
party hereto agrees that (i) the Account constitutes a “securities account”
within the meaning of Article 8 of the Uniform Commercial Code in effect in the
State of New York (the “UCC”), and (ii) all
property now or hereafter held, credited or carried by, in or to the credit of
the Account shall be treated as “financial assets” within the meaning of Section
8-102(a)(9) of the UCC. The parties hereto agree that (1) this
Agreement is an "authenticated" record and that the arrangements established
under this Agreement constitute "control" of the Account, (2) the Borrower shall
not have any right to make withdrawals from, or give disbursement directions
with respect to the Account without the consent of the Agent; provided, however, that prior
to an Event of Default, the Borrower may direct the Account Bank to invest funds
in the Account in Permitted Investments; and (3) other than as expressly set
forth in the immediately preceding subparagraph (2), the Account Bank and
Securities Intermediary will comply solely with instructions originated by the
Agent directing disposition of funds and investments
in the Account and, to the extent that the Account constitutes a “securities
account” (as such term is defined in Section 8-501 of the UCC), with
“entitlement orders” (as such term is defined in Section 8-102 of the UCC)
originated by the Agent with respect to the Account, including any amounts or
financial assets deposited in or credited to the Account, all without further
consent of the Borrower. In no event prior to receipt of the Notice
of Termination (as hereinafter defined) shall the Borrower have the right to
close the Account. The Securities Intermediary represents that it has
not allowed, and hereby agrees that it will not allow, any person other than the
Agent, to have control of the Account and further represents that it has not
entered into, and hereby agrees that it will not enter into, any control
agreement or any other agreement relating to the Account with any other third
party other than the Loan Agreement.
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(b) Credit to
Account. All financial assets credited to the Account shall be
registered in the name of the Securities Intermediary or endorsed to the
Securities Intermediary or in blank, and in no event will any financial asset
credited to the Account be registered in the name of the Borrower, payable to
the order of the Borrower or specially endorsed to the Borrower except to the
extent such financial assets have been specially endorsed to the Securities
Intermediary or in blank.
(c) Notice of Registration or
Endorsement. The Securities Intermediary agrees that it shall
promptly notify the Agent and the Borrower in writing after becoming aware
(using reasonable care) that any financial asset pledged to the Account is
registered or endorsed in contravention of Section 1(b); provided, however,
that the Securities Intermediary shall have no liability hereunder for the
failure to deliver such notice except to the extent such failure results from
its gross negligence or willful misconduct.
(d) Acknowledgement of Security
Interest. The Securities Intermediary hereby acknowledges the
security interest in the Account, all investment property (as defined in Section
9-102(a)(49) of the UCC) and other financial assets from time to time credited
to the Account and all Proceeds (as defined in the UCC) of such assets
including, without limitation, all interest, dividends, stock dividends, stock
splits and other money or property of any kind distributed in respect of such
assets.
2. Representations, Warranties
and Covenants of the Borrower: The Borrower represents and
warrants on its own behalf only that (a) it has rights in the Account and all
property now or hereafter held, credited or carried by, in or to the credit of
the Account; (b) its interest in the Account is free of all adverse
claims, liens, security interests and restrictions on transfer or pledge except
as created by this Account Control Agreement or the Loan Agreement; (c) this
Account Control Agreement constitutes the legal, valid and binding agreement of
the Borrower, enforceable against the Borrower in accordance with its terms; (d)
the security interests in the Account and the security entitlements with respect
to the Account granted in favor of the Agent are perfected security interests;
(e) the Borrower’s exact legal name and sole jurisdiction of organization are as
set forth in the first paragraph of this Account Control Agreement; and (f) the
Reserve Account (Acct. No. 117837001) has been established in accordance with
the Loan Agreement. The Borrower covenants, until the performance or
payment in full of its secured obligations, that (y) it will not create in favor
of any person other than the Agent an adverse claim, lien or security interest
in the Account or the security entitlements and financial assets credited
thereto and (z) it shall from time to time take such additional steps as the
Agent may reasonably request for the perfection and priority of the security
interests in the Account and all security entitlements with respect to the
Account to be maintained.
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3. Certain Matters Regarding
the Securities Intermediary:
(a) Representations, Warranties
and Covenants. The Securities Intermediary represents,
warrants and covenants that the Account constitutes and will continue to
constitute a “securities account” and the Securities Intermediary confirms and
agrees that (i) the Account has been established and is maintained with the
Securities Intermediary on its books and records and is maintained and will
continue to be maintained as a segregated account, (ii) the Securities
Intermediary is a “securities intermediary” within the meaning of Section
8-102(a)(14) of the UCC, (iii) the Account is an account to which financial
assets, as defined in Section 8-102(a)(9) of the UCC, are or may be credited,
(iv) the Agent is the entitlement holder of the Account, (v) all property
delivered to the Securities Intermediary for deposit into the Account will be
promptly credited to the Account, (vi) each item of property (whether cash or
any security, instrument, obligation, share, participation, interest or other
property whatsoever) at any time in the Account shall be treated as a financial
asset as defined in Section 8-102(a)(9) of the UCC, (vii) the Securities
Intermediary shall not change the name or the account number of the Account
without the prior written consent of the Agent and (viii) this Account Control
Agreement is the valid and legally binding obligation of the Securities
Intermediary, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, rearrangement, liquidation, conservatorship,
fraudulent conveyance, and general principles of equity.
(b) Competing
Claims. In the event that the Securities Intermediary has or
subsequently obtains by agreement, operation of law or otherwise a security
interest in the Account or any security entitlement in respect of financial
assets carried therein, the Securities Intermediary hereby agrees that such
security interest shall be subordinate to the security interests of Agent under
this Account Control Agreement, and agrees that the financial assets standing to
the credit of the Account will not be subject to deduction, set-off, banker’s
lien or any other right in favor of any Person other than the Agent (except for
the face amount of any checks which have been credited to the Account but are
subsequently returned unpaid because of uncollected or insufficient funds);
provided, however, that the
Securities Intermediary may set off all amounts due to it in respect of its
reasonable customary fees and expenses for the routine maintenance and operation
of the Account.
(c) Standard of
Care. The Securities Intermediary shall have no
responsibilities, obligations or other duties other than those expressly set
forth in this Account Control Agreement and no implied duties, responsibilities
or obligations shall be read into this Account Control Agreement against the
Securities Intermediary. As between the Securities Intermediary and
the Agent, notwithstanding any provision contained herein or in any other
document or instrument to the contrary, the Securities Intermediary shall not be
liable for any action taken or omitted to be taken at the instruction of the
Agent, or any action taken or omitted to be taken under or in connection with
this Account Control Agreement, except for the Securities Intermediary’s own
gross negligence or willful misconduct.
(d) Costs;
Indemnity. All reasonable expenses incurred by the Securities
Intermediary in connection with this Account Control Agreement shall be paid by
the Borrower. The Borrower agrees to indemnify and hold the
Securities Intermediary harmless against any losses, liabilities and damages
incurred by the Securities Intermediary as a consequence of any action taken or
omitted to be taken by it in the performance of its obligations hereunder, with
the exception of any losses, liabilities and damages arising from any breach by
the Securities Intermediary of the standard of care set forth in paragraph (c)
above. Any amounts payable by the Borrower hereunder shall be
limited to funds available to pay such amounts pursuant to Section 1.4 of the
Loan Agreement.
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(e) Books, Records and
Accounts. The Securities Intermediary shall, promptly upon the
reasonable request of the Agent, make available to the Agent copies of its
books, records and accounts to the extent relating to the Account, shall permit
the officers and employees of the Securities Intermediary to discuss the
foregoing with the Agent during normal business hours upon reasonable notice,
and shall provide the Agent with all account statements and other reports as to
the Account which are customary for accounts of this type or which are provided
to the Borrower.
(f) Reliance Upon Written
Documents. The Securities Intermediary shall be protected in
acting or refraining from acting upon any written notice, certificate,
instruction, request or other paper or document, as to the due execution thereof
and the validity and effectiveness of the provisions thereof and as to the truth
of any information therein contained, which the Securities Intermediary in good
faith believes to be genuine.
(g) Advice From
Counsel. The Securities Intermediary may consult with and
obtain advice from counsel of its own choice in the event of any dispute or
question as to the construction of any provision hereof or otherwise in
connection with its duties hereunder, and any action taken or omitted by the
Securities Intermediary in reasonable reliance upon such advice shall be full
justification and protection to it. The Securities Intermediary shall
not be liable for any error of judgment or for any act done or step taken or
omitted except in the case of its negligence, willful misconduct or bad
faith.
(h) Other
Transactions. The Securities Intermediary may engage or be
interested in any financial or other transactions with any party hereto and may
act on, or as depositary, trustee or agent for, any committee or body of holders
of obligations of such Persons as freely as if it were not the Securities
Intermediary hereunder.
(i) Action Without
Indemnity. The Securities Intermediary shall not be obligated
to take any action which in its reasonable judgment would cause it to incur any
expense or liability not otherwise contemplated hereunder unless it has been
furnished with an indemnity with respect thereto which is reasonably
satisfactory to the Securities Intermediary.
4. Termination. This
Agreement shall remain in effect until receipt by the Securities Intermediary of
written notice from the Agent in substantially the form of Exhibit A hereto (a
“Notice of
Termination”). The rights and powers granted to the Agent in
this Agreement are powers coupled with an interest and will not be affected by
the insolvency or bankruptcy of the Borrower nor by the lapse of
time. The termination of this Agreement shall not terminate the
Account or alter the obligations of the Securities Intermediary to the Borrower
pursuant to any other agreement with respect to the Account.
5. Conflict With Other
Agreements. In the event of any conflict between this Account
Control Agreement (or any portion thereof) and any other agreement now existing
or hereafter entered into, the terms of this Account Control Agreement shall
prevail.
6.
Notices.
Any notice given pursuant to this Account Control Agreement shall be given as
set forth in the Loan Agreement.
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7. Governing
Law: THIS ACCOUNT CONTROL AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK. Each of the
parties hereto acknowledge and agree that this Account Control Agreement governs
the Account and that for purposes of the UCC, the State of New York is the
“securities intermediary’s jurisdiction” (within the meaning of Section 8-110(b)
and (e)) with respect to the Account.
8. Miscellaneous: This
Account Control Agreement shall be effective as of the date first written above
and shall be binding upon and inure to the benefit of the respective successors
and assigns of the parties hereto; provided that none of the Borrower or the
Securities Intermediary may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Agent. Neither
this Account Control Agreement nor any provisions hereof may be changed,
amended, modified, terminated or waived orally, but only by an instrument in
writing signed by the parties hereto. Any provisions of this Account
Control Agreement which may prove unenforceable under any law or regulation
shall not affect the validity of any other provision hereof. This
Account Control Agreement may be executed in one or more counterparts, all of
which shall constitute one and the same agreement.
[Remainder
of Page Intentionally Blank]
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IN
WITNESS WHEREOF, each of the undersigned has caused this Account Control
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
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MINISTRY
PARTNERS FUNDING, LLC
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By:
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Name:
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Title:
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BMO
CAPITAL MARKETS CORP.
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By:
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Name:
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Title:
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U.S.
BANK NATIONAL ASSOCIATION, as Account Bank and Securities
Intermediary
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By:
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Name:
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Title:
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EXHIBIT
A
NOTICE OF
TERMINATION
U.S. Bank
National Association,
as
Securities Intermediary
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Attention:
Client Manager - Ministry Partners
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Re:
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Reserve
Account Control Agreement dated as of October [ ], 2007 (the
“Agreement”) by
and among Ministry Partners Funding, LLC, a Delaware limited liability
company (the “Borrower”), BMO
Capital Markets Corp., in its capacity as agent, and U.S. Bank National
Association, in its capacity as Account Bank and as Securities
Intermediary.
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Ladies
and Gentlemen:
This
constitutes a Notice of Termination as referred to in Section 4 of the
Agreement.
You are
hereby notified that the Agreement is terminated with respect to the undersigned
and you have no further obligations to the undersigned
thereunder. Notwithstanding any previous instructions to you, you are
hereby instructed to accept all future directions with respect to the Account
and their contents from the Borrower. This notice terminates any
obligations you may have to the undersigned with respect to the Account and
their contents; however nothing contained in this notice shall alter any
obligations which you may otherwise owe to the Borrower pursuant to any other
agreement.
You are
instructed to deliver a copy of this notice by facsimile transmission to the
Borrower and the other parties to the Agreement.
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BMO
CAPITAL MARKETS CORP., AS AGENT
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By:____________________________
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Name:
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Title:
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