PLEDGE AGREEMENT (MLCS/MMA REALTY) from MUNIMAE TEI HOLDINGS, LLC as Pledgor to MERRILL LYNCH CAPITAL SERVICES, INC. Dated March 6, 2008
Exhibit 10.47.K
EXECUTION COPY
PLEDGE AGREEMENT
(MLCS/MMA REALTY)
(MLCS/MMA REALTY)
from
MUNIMAE TEI HOLDINGS, LLC
as Pledgor
as Pledgor
to
XXXXXXX XXXXX CAPITAL SERVICES, INC.
Dated March 6, 2008
Section 1. |
Grant of Security | 2 | ||||
Section 2. |
Security for Obligations | 2 | ||||
Section 3. |
Pledgor Remains Liable | 3 | ||||
Section 4. |
Delivery and Control of Security Collateral | 3 | ||||
Section 5. |
Representations and Warranties | 3 | ||||
Section 6. |
Further Assurances | 5 | ||||
Section 7. |
Post-Closing Changes | 5 | ||||
Section 8. |
Voting Rights; Dividends; Etc. | 6 | ||||
Section 9. |
Transfers and Other Liens; Additional Shares | 7 | ||||
Section 10. |
MLCS Appointed Attorney-in-Fact | 7 | ||||
Section 11. |
MLCS May Perform | 8 | ||||
Section 12. |
MLCS Duties | 8 | ||||
Section 13. |
Remedies | 9 | ||||
Section 14. |
Indemnity and Expenses | 10 | ||||
Section 15. |
Amendments; Waivers, Etc. | 11 | ||||
Section 16. |
Notices, Etc. | 11 | ||||
Section 17. |
Continuing Security Interest; Assignments | 11 | ||||
Section 18. |
Release; Termination | 12 | ||||
Section 19. |
Execution in Counterparts | 12 | ||||
Section 20. |
Governing Law | 12 |
| SCHEDULES I | LOCATION, CHIEF EXECUTIVE OFFICE, TYPE OF
ORGANIZATION, JURISDICTION OF ORGANIZATION
AND ORGANIZATIONAL IDENTIFICATION NUMBER |
|||
| SCHEDULE II | PLEDGED EQUITY |
|||
| SCHEDULE III | CHANGES IN NAME, LOCATION, ETC. |
THIS PLEDGE AGREEMENT dated March 6, 2008 is made by MUNIMAE TEI HOLDINGS, LLC, a Maryland
limited liability company (the “Pledgor”), to and for the benefit of XXXXXXX XXXXX CAPITAL
SERVICES, INC. (“MLCS”).
PRELIMINARY STATEMENTS.
A. MLCS and MMA Realty Capital, LLC (“MRC”) entered into that certain ISDA Master Agreement,
dated as of February 1, 2007 (as amended, restated and/or supplemented from time to time, the
“Master Agreement”), together with the (a) Multicurrency-Cross Border Schedule to the
Master Agreement, dated as of February 1, 2007 (as amended, restated and/or supplemented from time
to time, the “Cross Border Schedule”), (b) Credit Support Annex to the Master Agreement, dated as
of February 1, 2007 (as amended, restated and/or supplemented from time to time, the “Support
Annex”), and (c) various Confirmations thereunder (all Confirmations issued thereunder from
time to time, amended, restated and/or supplemented from time to time, the “Confirmation Letters”)
(collectively, all as amended, restated and/or supplemented from time to time, including by the
execution of additional Confirmation Letters, the “Swap Agreement”);
B. The Pledgor is entering into this Agreement in order to grant to MLCS a security interest
in the Collateral (as hereinafter defined) as security for its guaranty of MRC’s obligations under
the Swap Agreement pursuant to that certain Guarantee of MuniMae TEI Holdings, LLC dated the date
hereof (the “TEI Guarantee”).
C. The Pledgor is also entering into other related pledge agreements (the “Related Pledge
Agreements”) in order to grant to MLCS a security interest in the Collateral (as defined
thereunder) as security for its obligations relating to the following related agreements, together
with all related schedules, annexes and confirmation letters, and other agreements, as applicable:
(i) that certain ISDA Master Agreement, dated as of April 28, 1997, by and between MLCS and
Municipal Mortgage & Equity, LLC, (ii) that certain ISDA Master Agreement, dated as of December 5,
2003, by and between MLCS and MuniMae TEI Holdings, LLC, (iii) that certain ISDA Master Agreement,
dated as of June 14, 2004, by and between MLCS and MMA Financial Holdings, Inc., and (iv) that
certain Fourth Amended and Restated Pledge and Security Agreement dated July 11, 2005, by and among
MLCS, the Pledgor, Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Municipal Mortgage &
Equity, LLC and U.S. Bank Trust National Association (as amended, restated and/or supplemented from
time to time, the “Related Swap Agreements”).
D. The Pledgor is the owner of the shares of stock or other equity interests (the “Initial
Pledged Equity”) set forth opposite the Pledgor’s name on and as otherwise described in Schedule II
hereto and issued by the issuer named therein.
E. Terms defined in the Swap Agreement and not otherwise defined in this Agreement are used in
this Agreement as defined in the Swap Agreement. Further, unless otherwise defined in this
Agreement or in the Swap Agreement, terms defined in Article 8 or 9 of the UCC (as defined below)
are used in this Agreement as such terms are defined in such
Article 8 or 9. “UCC” means the Uniform Commercial Code as in effect, from time to time, in
the State of New York; provided that, if perfection or the effect of perfection or nonperfection or
the priority of any security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial
Code as in effect from time to time in such other jurisdiction for purposes of the provisions
hereof relating to such perfection, effect of perfection or nonperfection or priority.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Pledgor hereby agrees with MLCS as follows:
Section 1. Grant of Security. The Pledgor hereby grants to MLCS a security interest in the
Pledgor’s right, title and interest in and to the following, in each case, as to each type of
property described below, whether now owned or hereafter acquired by the Pledgor, wherever located,
and whether now or hereafter existing or arising (collectively, the “Collateral”):
(a) the following (the “Security Collateral”):
(i) the Initial Pledged Equity and the certificates, if any, representing the
Initial Pledged Equity, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Initial Pledged
Equity and all subscription warrants, rights or options issued thereon or with
respect thereto;
(ii) all additional shares of stock and other equity interests of or in any
issuer of the Initial Pledged Equity or any successor entity from time to time
acquired by the Pledgor in any manner in connection with the Initial Pledged Equity
(such shares and other equity interests, together with the Initial Pledged Equity,
being the “Pledged Equity”), and the certificates, if any, representing such
additional shares or other equity interests, and all dividends, distributions,
return of capital, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of
such shares or other equity interests and all subscription warrants, rights or
options issued thereon or with respect thereto;
(b) all proceeds of, collateral for and supporting obligations relating to, any and all
of the Collateral (including, without limitation, proceeds, collateral and supporting
obligations that constitute property of the types described in clause (a) of this Section 1
and this clause (b)) and, to the extent not otherwise included, all (A) payments under
insurance, or any indemnity, warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral and (B) cash proceeds.
Section 2. Security for Obligations. This Agreement secures the payment of all obligations
of the Pledgor now or hereafter existing with respect to the Swap Documents (as defined in
Section 3 hereof) including under the TEI Guarantee, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations, interest, fees,
2
premiums, penalties, indemnifications, contract causes of action, costs, expenses or otherwise
(all such obligations being the “Secured Obligations”).
Section 3. Pledgor Remains Liable. Anything herein to the contrary notwithstanding, (a) the
Pledgor shall remain liable under any contracts and agreements included in the Collateral to the
extent set forth therein and to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by MLCS of any of the rights
hereunder shall not release the Pledgor from any of its duties or obligations under any contracts
and agreements included in the Collateral and (c) MLCS shall not have any obligation or liability
under any contracts and agreements included in the Collateral by reason of this Agreement or any
other documents evidencing or securing the Swap Agreement (the “Swap Documents”), nor shall MLCS be
obligated to perform any of the obligations or duties of the Pledgor thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
Section 4. Delivery and Control of Security Collateral.
(a) All certificates or instruments representing or evidencing Security Collateral
shall be delivered to and held by or on behalf of MLCS pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance satisfactory to MLCS. MLCS
shall have the right, at any time in its discretion and without notice to the Pledgor, to
transfer to or to register in the name of MLCS or any of its nominees any or all of the
Collateral, subject only to the revocable rights of the Pledgor specified in Section 8(a).
In addition, upon the occurrence and during the continuance of an Event of Default, with
respect to MRC or any Credit Support Provider of the MRC, under Section 5(a) of the Master
Agreement (in each case, a “Specified Event of Default”), MLCS shall have the right at any
time to exchange certificates or instruments representing or evidencing Security Collateral
for certificates or instruments of smaller or larger denominations.
(b) With respect to any Security Collateral in which the Pledgor has any right, title
or interest and that constitutes an uncertificated security, the Pledgor will cause the
issuer thereof either (i) to register MLCS as the registered owner of such security subject,
however, to this Agreement, or (ii) to agree in an authenticated record with the Pledgor and
MLCS that such issuer will comply with instructions with respect to such security originated
by MLCS without further consent of the Pledgor, such authenticated record to be in form and
substance satisfactory to MLCS. With respect to any Pledged Equity in which the Pledgor has
any right, title or interest and that is not an uncertificated security, the Pledgor will
notify each such issuer of Pledged Equity that such Pledged Equity is subject to the
security interest granted hereunder.
Section 5. Representations and Warranties. The Pledgor represents and warrants as follows:
(a) The Pledgor’s exact legal name, as defined in Section 9-503(a) of the UCC, is
correctly set forth in Schedule I hereto. The Pledgor has no other trade names.
3
The Pledgor is located (within the meaning of Section 9-307 of the UCC) and has its
chief executive office in the state or jurisdiction set forth in Schedule I hereto. The
information set forth in Schedule I hereto with respect to the Pledgor is true and accurate
in all respects. The Pledgor has not, in the past five years, changed its name, location,
chief executive office, type of organization, jurisdiction of organization or organizational
identification number from those set forth in Schedule I hereto except as disclosed in
Schedule III hereto.
(b) All Security Collateral consisting of certificated securities has been delivered to
MLCS.
(c) The Pledgor is the legal and beneficial owner of the Collateral of the Pledgor free
and clear of any lien, claim, option or right of others, except for the security interest
created under this Agreement. No effective financing statement or other instrument similar
in effect covering all or any part of such Collateral or listing the Pledgor or any trade
name of the Pledgor as debtor is on file in any recording office, except such as may have
been filed in favor of MLCS relating to the Swap Documents.
(d) The Pledged Equity pledged by the Pledgor hereunder has been duly authorized and
validly issued and is fully paid and nonassessable. With respect to any Pledged Equity that
is an uncertificated security, the Pledgor has caused the issuer thereof either (i) to
register MLCS as the registered owner of such security subject, however, to this Agreement,
or (ii) to agree in an authenticated record with the Pledgor and MLCS that such issuer will
comply with instructions with respect to such security originated by MLCS without further
consent of the Pledgor.
(e) The Initial Pledged Equity pledged by the Pledgor constitutes the percentage of the
issued and outstanding equity interests of the issuers thereof indicated on Schedule II
hereto.
(f) All filings and other actions (including, without limitation, actions necessary to
obtain control of the Collateral as provided in Section 9-106 of the UCC) necessary to
perfect the security interest in the Collateral of the Pledgor created under this Agreement
have been duly made or taken, or delivered to MLCS or its agent for filing, and are in full
force and effect, and this Agreement creates in favor of MLCS a valid and, together with
such filings and other actions, a perfected first priority security interest in the
Collateral of the Pledgor, securing the payment of the Secured Obligations.
(g) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for
(i) the grant by the Pledgor of the security interest granted hereunder or for the
execution, delivery or performance of this Agreement by the Pledgor, (ii) the perfection or
maintenance of the security interest created hereunder (including the first priority nature
of such security interest), except for the filing of financing and continuation statements
under the UCC, which financing statements have been duly filed and are in full force and
effect, or delivered to MLCS or its agent for filing, and the actions described in Section 4
with respect to the Collateral, which actions have been taken and
4
are in full force and effect, or (iii) the exercise by MLCS of its voting or other
rights provided for in this Agreement or the remedies in respect of the Collateral pursuant
to this Agreement, except as may be required in connection with the disposition of any
portion of the Security Collateral by laws affecting the offering and sale of securities
generally.
Section 6. Further Assurances.
(a) The Pledgor agrees that from time to time, at the expense of the Pledgor, the
Pledgor will promptly execute and deliver, or otherwise authenticate, all further
instruments and documents, and take all further action that may be necessary or desirable,
or that MLCS may request, in order to perfect and protect any pledge or security interest
granted or purported to be granted by the Pledgor hereunder or to enable MLCS to exercise
and enforce its rights and remedies hereunder with respect to any Collateral of the Pledgor.
Without limiting the generality of the foregoing, the Pledgor will promptly with respect to
Collateral of the Pledgor: (i) if any such Collateral shall be evidenced by a promissory
note or other instrument, deliver and pledge to MLCS hereunder such note or instrument duly
indorsed and accompanied by duly executed instruments of transfer or assignment, all in form
and substance satisfactory to MLCS; (ii) execute or authenticate and file such financing or
continuation statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as MLCS may request, in order to perfect and preserve the
security interest granted or purported to be granted by the Pledgor hereunder; (iii) deliver
and pledge to MLCS certificates representing any Collateral that constitutes certificated
securities, accompanied by undated stock or bond powers executed in blank; (iv) take all
action necessary to ensure that MLCS has control of Collateral consisting of investment
property as provided in Section 9-106 of the UCC; and (v) deliver to MLCS evidence that all
other action that MLCS may deem reasonably necessary or desirable in order to perfect and
protect the security interest created by the Pledgor under this Agreement has been taken.
(b) The Pledgor hereby authorizes MLCS to file one or more financing or continuation
statements, and amendments thereto, in each case without the signature of the Pledgor, and
regardless of whether any particular asset described in such financing statements falls
within the scope of the UCC. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law. The Pledgor ratifies its authorization for MLCS
to have filed such financing statements, continuation statements or amendments filed prior
to the date hereof.
(c) The Pledgor will furnish to MLCS from time to time statements and schedules further
identifying and describing the Collateral of the Pledgor and such other reports in
connection with such Collateral as MLCS may reasonably request, all in reasonable detail.
Section 7. Post-Closing Changes. The Pledgor will not change its name, type of organization,
jurisdiction of organization, organizational identification number or location from those set forth
in Section 5(a) of this Agreement without first giving at least 10 Business Days’
5
prior written notice to MLCS and taking all action required by MLCS for the purpose of
perfecting or protecting the security interest granted by this Agreement. The Pledgor will not
become bound by a security agreement covering the Collateral authenticated by another person or
entity (“Person”) (determined as provided in Section 9-203(d) of the UCC) without giving MLCS
30 days’ prior written notice thereof and taking all action required by MLCS to ensure that the
perfection and first priority nature of MLCS’s security interest in the Collateral will be
maintained. The Pledgor will hold and preserve its records relating to the Collateral, and will
permit representatives of MLCS at any time during normal business hours to inspect and make
abstracts from such records and other documents. If the Pledgor does not have an organizational
identification number and later obtains one, it will forthwith notify MLCS of such organizational
identification number.
Section 8. Voting Rights; Dividends; Etc. (a) So long as no Specified Event of Default shall
have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral of the Pledgor or any part thereof for any purpose;
provided, however, that the Pledgor will not exercise or refrain from exercising any such
right if such action would have a material adverse effect on the value of the Collateral or
any part thereof.
(ii) The Pledgor shall be entitled to receive and retain any and all dividends,
interest and other distributions paid in respect of the Collateral of the Pledgor if and to
the extent that the payment thereof is not otherwise prohibited by the terms of the Swap
Documents; provided, however, that any and all:
(A) dividends, interest and other distributions paid or payable other than in
cash in respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Collateral,
(B) dividends and other distributions paid or payable in cash in respect of any
Collateral in connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-in-surplus and
(C) cash paid, payable or otherwise distributed in respect of principal of, or
in redemption of, or in exchange for, any Collateral
shall be, and shall be forthwith delivered to MLCS to hold as, Collateral and shall, if
received by the Pledgor, be received in trust for the benefit of MLCS, be segregated from
the other property or funds of the Pledgor and be forthwith delivered to MLCS as Collateral
in the same form as so received (with any necessary indorsement).
(iii) MLCS will execute and deliver (or cause to be executed and delivered) to the
Pledgor all such proxies and other instruments as the Pledgor may reasonably request for the
purpose of enabling the Pledgor to exercise the voting and other rights that it is entitled
to exercise pursuant to paragraph (i) above and to receive the dividends or interest
payments that it is authorized to receive and retain pursuant to paragraph (ii) above.
6
(b) Upon the occurrence and during the continuance of a Specified Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise pursuant to
Section 8(a)(i) shall, upon notice to the Pledgor by MLCS, cease and (y) to receive the
dividends, interest and other distributions that it would otherwise be authorized to receive
and retain pursuant to Section 8(a)(ii) shall automatically cease, and all such rights shall
thereupon become vested in MLCS, which shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and to receive and hold as
Collateral such dividends, interest and other distributions.
(ii) All dividends, interest and other distributions that are received by the Pledgor
contrary to the provisions of paragraph (i) of this Section 8(b) shall be received in trust
for the benefit of MLCS, shall be segregated from other funds of the Pledgor and shall be
forthwith paid over to MLCS as Collateral in the same form as so received (with any
necessary indorsement).
Section 9. Transfers and Other Liens; Additional Shares.
(a) The Pledgor agrees that it will not, without the prior written consent of MLCS,
(i) sell, assign or otherwise dispose of, or grant any option with respect to, any of the
Collateral, other than sales, assignments and other dispositions of Collateral, and options
relating to Collateral, permitted under the terms of the Swap Documents, or (ii) create or
suffer to exist any lien upon or with respect to any of the Collateral of the Pledgor except
for the pledge, assignment and security interest created under this Agreement.
(b) The Pledgor agrees that, except as otherwise agreed to by MLCS, it will (i) cause
each issuer of the Pledged Equity pledged by the Pledgor not to issue any equity interests
or other securities in addition to or in substitution for the Pledged Equity issued by such
issuer, except to the Pledgor to be pledged hereunder (except that MuniMae XX Xxxx
Subsidiary, LLC shall be permitted to issue preferred shares in substitution for or in
addition to the preferred shares issued and outstanding on the date hereof to holders other
than the Pledgor), and (ii) pledge hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional stock and other equity interests of each issuer
of the Pledged Equity.
Section 10. MLCS Appointed Attorney-in-Fact. The Pledgor hereby irrevocably appoints MLCS
the Pledgor’s attorney-in-fact, with full authority in the place and stead of the Pledgor and in
the name of the Pledgor or otherwise, from time to time upon the occurrence and during the
continuance of a Specified Event of Default in MLCS’s discretion, to take any action and to execute
any instrument that MLCS may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation:
(a) to ask for, demand, collect, xxx for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect of any of the
Collateral,
7
(b) to receive, indorse and collect any drafts or other instruments or documents in
connection with clause (a) above, and
(c) to file any claims or take any action or institute any proceedings that MLCS may
deem necessary or desirable for the collection of any of the Collateral or otherwise to
enforce compliance with the rights of MLCS with respect to any of the Collateral.
Section 11. MLCS May Perform. If the Pledgor fails to perform any agreement contained
herein, MLCS may, as MLCS deems necessary to protect the security interest granted hereunder in the
Collateral or to protect the value thereof, but without any obligation to do so and without notice,
itself perform, or cause performance of, such agreement, and the expenses of MLCS incurred in
connection therewith shall be payable by the Pledgor under Section 14.
Section 12. MLCS Duties.
(a) The powers conferred on MLCS hereunder are solely to protect MLCS’ interest in the
Collateral and shall not impose any duty upon it to exercise any such powers. Except for
the safe custody of any Collateral in its possession and the accounting for moneys actually
received by it hereunder, MLCS shall have no duty as to any Collateral, as to ascertaining
or taking action with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not MLCS is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against any parties
or any other rights pertaining to any Collateral. MLCS shall be deemed to have exercised
reasonable care in the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which it accords its own
property.
(b) Anything contained herein to the contrary notwithstanding, MLCS may from time to
time, when MLCS deems it to be necessary, appoint one or more collateral agents (each a
“Collateral Agent”) for MLCS hereunder with respect to all or any part of the Collateral,
which Collateral Agent shall be selected with reasonable care. In the event that MLCS so
appoints any Collateral Agent with respect to any Collateral, (i) the assignment and pledge
of such Collateral and the security interest granted in such Collateral by the Pledgor
hereunder shall be deemed for purposes of this Agreement to have been made to such
Collateral Agent, in addition to MLCS, as security for the Secured Obligations of the
Pledgor, (ii) such Collateral Agent shall automatically be vested, in addition to MLCS, with
all rights, powers, privileges, interests and remedies of MLCS hereunder with respect to
such Collateral, and (iii) the term “MLCS,” when used herein in relation to any rights,
powers, privileges, interests and remedies of MLCS with respect to such Collateral, shall
include such Collateral Agent; provided, however, that no such Collateral Agent shall be
authorized to take any action with respect to any such Collateral unless and except to the
extent expressly authorized in writing by MLCS.
8
Section 13. Remedies. If a Specified Event of Default shall have occurred and be continuing:
(a) MLCS may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and remedies of a
secured party upon default under the UCC (whether or not the UCC applies to the affected
Collateral) and also may: (i) without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public or private sale, at any of MLCS’s
offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms
as MLCS may deem commercially reasonable; and (ii) exercise any and all rights and remedies
of the Pledgor under or in connection with the Collateral, or otherwise in respect of the
Collateral, including, without limitation, any and all rights of the Pledgor to demand or
otherwise require payment of any amount under, or performance of any provision of, the
Collateral, and exercise all other rights and remedies with respect to the Collateral,
including, without limitation, those set forth in Section 9-607 of the UCC. The Pledgor
agrees that, to the extent notice of sale shall be required by law, at least ten days’
notice to the Pledgor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. MLCS shall not be
obligated to make any sale of Collateral regardless of notice of sale having been given.
MLCS may adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
(b) Any cash held by or on behalf of MLCS and all cash proceeds received by or on
behalf of MLCS in respect of any sale of, collection from, or other realization upon all or
any part of the Collateral may, in the discretion of MLCS, be held by MLCS as collateral
for, and/or then or at any time thereafter applied (after payment of any amounts payable to
MLCS pursuant to Section 14) in whole or in part by MLCS against, all or any part of the
Secured Obligations, in the following manner:
(i) first, paid to MLCS for any amounts then owing to MLCS pursuant to the Swap
Documents; and
(ii) second, any surplus of such cash or cash proceeds held by or on the behalf
of MLCS and remaining after payment in full of all the Secured Obligations shall be
paid over to the Pledgor or to whomsoever may be lawfully entitled to receive such
surplus; provided that if the Pledgor has any other past due payment obligations
owing to MLCS under the Related Swap Agreements, MLCS shall be entitled to apply
such surplus to such payment obligations before releasing such surplus to Pledgor.
(c) All payments received by the Pledgor under or in connection with the Collateral
shall be received in trust for the benefit of MLCS, shall be segregated from other funds of
the Pledgor and shall be forthwith paid over to MLCS in the same form as so received (with
any necessary indorsement).
9
(d) If MLCS shall determine to exercise its right to sell all or any of the Security
Collateral of the Pledgor pursuant to this Section 13, the Pledgor agrees that, upon request
of MLCS, the Pledgor will, at its own expense:
(i) execute and deliver, and cause each issuer of such Security Collateral
contemplated to be sold and the directors and officers thereof to execute and
deliver, all such instruments and documents, and do or cause to be done all such
other acts and things, as may be necessary or, in the opinion of MLCS, advisable to
register such Security Collateral under the provisions of the Securities Act of 1933
(as amended from time to time, the “Securities Act”), to cause the registration
statement relating thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished and to make all
amendments and supplements thereto and to the related prospectus that, in the
opinion of MLCS, are necessary or advisable, all in conformity with the requirements
of the Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto;
(ii) use its best efforts to qualify the Security Collateral under the state
securities or “Blue Sky” laws and to obtain all necessary governmental approvals for
the sale of such Security Collateral, as requested by MLCS;
(iii) cause each such issuer of such Security Collateral to make available to
its security holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act;
(iv) provide MLCS with such other information and projections as may be
necessary or, in the opinion of MLCS, advisable to enable MLCS to effect the sale of
such Security Collateral; and
(v) do or cause to be done all such other acts and things as may be necessary
to make such sale of such Security Collateral or any part thereof valid and binding
and in compliance with applicable law.
(e) MLCS is authorized, in connection with any sale of the Security Collateral pursuant
to this Section 13, to deliver or otherwise disclose to any prospective purchaser of the
Security Collateral: (i) any registration statement or prospectus, and all supplements and
amendments thereto, prepared pursuant to subsection (d)(i) above; (ii) any information and
projections provided to it pursuant to subsection (d)(iv) above; and (iii) any other
information in its possession relating to such Security Collateral.
(f) MLCS may, without notice to the Pledgor except as required by law and at any time
or from time to time, charge, set-off and otherwise apply all or any part of the Secured
Obligations against any funds held in any deposit account of the Pledgor.
Section 14. Indemnity and Expenses.
(a) The Pledgor agrees to indemnify, defend and save and hold harmless MLCS and each of
its Affiliates and its respective officers, directors, employees, agents
10
and advisors (each, an “Indemnified Party”) from and against, and shall pay on demand,
any and all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in connection with or
resulting from this Agreement (including, without limitation, enforcement of this
Agreement), except to the extent such claim, damage, loss, liability or expense is found in
a final, nonappealable judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party’s gross negligence or willful misconduct.
(b) The Pledgor will upon demand pay to MLCS the amount of any and all reasonable
expenses, including, without limitation, the reasonable fees and expenses of its counsel and
of any experts and agents, that MLCS may incur in connection with (i) the administration of
this Agreement, (ii) the custody or preservation, or the sale of, collection from or other
realization upon, any of the Collateral of the Pledgor, (iii) the exercise or enforcement of
any of the rights of MLCS hereunder or (iv) the failure by the Pledgor to perform or observe
any of the provisions hereof.
Section 15. Amendments; Waivers, Etc. No amendment or waiver of any provision of this
Agreement, and no consent to any departure by the Pledgor herefrom, shall in any event be effective
unless the same shall be in writing and signed by MLCS, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given. No failure
on the part of MLCS to exercise, and no delay in exercising any right hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.
Section 16. Notices, Etc. All notices and other communications provided for hereunder shall
be in writing (including telecopier communication) and mailed, telecopied or otherwise delivered to
the applicable parties at the addresses set forth in the Swap Agreement; or at such other address
as shall be designated by such party in a written notice to the other parties. All such notices
and other communications shall, when mailed, telecopied or otherwise, be effective three Business
Days after when deposited in the mails, or when actually received, if telecopied or otherwise
delivered (or confirmed by a signed receipt), respectively, addressed as aforesaid; except that
notices and other communications to MLCS shall not be effective until received by MLCS. Delivery
by telecopier of an executed counterpart of any amendment or waiver of any provision of this
Agreement or Schedule hereto shall be effective as delivery of an original executed counterpart
thereof.
Section 17. Continuing Security Interest; Assignments. This Agreement shall create a
continuing security interest in the Collateral and shall (a) remain in full force and effect until
(i) the termination of all Confirmation Letters and the payment in full of all of the Pledgor’s
obligations with respect thereto under the Swap Documents or (ii) the release of the security
interest is permitted pursuant to the terms of the Amendment to Swap Documents, dated as of
March 6, 2008, by and between MRC and MLCS (the “Amendment to Swap Documents”), and (b) be binding
upon the Pledgor, its successors and assigns. All of the rights of MLCS hereunder shall be
assignable without the consent of the Maker to any person or entity that has assumed the
obligations of MLCS with respect to the Confirmation Letters as permitted by the Swap Documents.
11
Section 18. Release; Termination.
(a) Upon any sale, transfer or other disposition of any item of Collateral of the
Pledgor in accordance with the terms of the Swap Documents at the direction of or with the
consent of MLCS, MLCS will, at the Pledgor’s expense, execute and deliver to the Pledgor
such documents as the Pledgor shall reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted hereby; provided, however,
that (i) at the time of such request and such release no Specified Event of Default shall
have occurred and be continuing, and (ii) the Pledgor shall have delivered to MLCS, at least
ten Business Days prior to the date of the proposed release, a written request for release
describing the item of Collateral and the terms of the sale, transfer or other disposition
in reasonable detail, including, without limitation, the price thereof and any expenses in
connection therewith, together with a form of release for execution by MLCS and a
certificate of the Pledgor to the effect that the transaction is in compliance with the Swap
Documents and as to such other matters as MLCS may request. Notwithstanding the foregoing,
MLCS shall release its security interest as required to do so pursuant to the terms of the
Amendment to Swap Documents. Promptly, upon any such termination, all rights to the
Collateral shall revert to the Pledgor and MLCS shall, at the Pledgor’s expense, (i) return
to Pledgor all certificates representing the Pledged Equity along with any related
endorsements and (ii) execute and deliver to the Pledgor such documents and take such
actions as the Pledgor shall reasonably request to evidence such termination to effect the
release of its security interests hereunder.
(b) Upon the complete termination of all Confirmation Letters and the payment in full
of the Pledgor’s obligations with respect thereto under the Swap Documents or a release of
the security interest pursuant to the terms of the Amendment to Swap Documents, the pledge
and security interest granted hereby shall terminate and all rights to the Collateral shall
revert to the Pledgor. Promptly, upon any such termination, MLCS shall, at the Pledgor’s
expense, (i) return to Pledgor all certificates representing the Pledged Equity along with
any related endorsements and (ii) execute and deliver to the Pledgor such documents and take
such actions as the Pledgor shall reasonably request to evidence such termination to effect
the release of its security interests hereunder.
Section 19. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an executed counterpart of
a signature page to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
Section 20. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank]
12
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly executed and delivered by
its officer thereunto duly authorized as of the date first above written.
| MUNIMAE TEI HOLDINGS, LLC | ||||||
| By |
|
|||||
| Name |
|
|||||
| Title |
|
|||||
SCHEDULE I TO THE
SECURITY AGREEMENT
SECURITY AGREEMENT
LOCATION, CHIEF EXECUTIVE OFFICE,
TYPE OF ORGANIZATION, JURISDICTION OF ORGANIZATION
AND ORGANIZATIONAL IDENTIFICATION NUMBER
TYPE OF ORGANIZATION, JURISDICTION OF ORGANIZATION
AND ORGANIZATIONAL IDENTIFICATION NUMBER
| Location (per | Chief | |||||||||
| Section 9-307 of | Executive | Type of | Jurisdiction | Organizational | ||||||
| Pledgor | the UCC) | Office | Organization | of Organization | I.D. No. | |||||
MuniMae TEI Holdings, LLC |
Maryland | 000 Xxxx Xxxxx Xxxxxx, 0xx xxxxx, Xxxxxxxxx, XX 00000 |
LLC | Maryland | W05207691 |
SCHEDULE II TO THE
SECURITY AGREEMENT
SECURITY AGREEMENT
PLEDGED EQUITY
| Percentage of | ||||||||||||||||
| Type of | Certificate | Number of | Outstanding | |||||||||||||
| Pledgor | Issuer | Equity Interests | Par Value | No(s) | Shares | Shares | ||||||||||
MuniMae TEI Holdings, LLC |
MuniMae XX Xxxx Subsidiary, LLC |
Common LLC Interests | N/A | 012 | 400 | 3.96% of Common Shares (as defined in the Operating Agreement of the Issuer) | ||||||||||
SCHEDULE III TO THE
SECURITY AGREEMENT
SECURITY AGREEMENT
CHANGES IN NAME, LOCATION, ETC.
Changes in the Pledgor’s Name (including new pledgor with a new name and names associated with
all predecessors in interest of the Pledgor): None.
Changes in the Pledgor’s Location: None
Changes in the Pledgor’s Chief Executive Office: until 10/24/2003, the Pledgor’s Chief
Executive office was located at: Xxxxx 000, X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Changes in the Type of Organization: None
Changes in the Jurisdiction of Organization: None
Changes in the Organizational Identification Number: None
