Exhibit 10.2a
INSURANCE SETTLEMENTS PURCHASE AGREEMENT
INSURANCE SETTLEMENTS PURCHASE AGREEMENT (the "Agreement"), dated as of
____________, 2000, by UNITED FUNDS, LLC, a Delaware limited liability company
(the "Seller") and CAPITAL RESOURCE GROUP ONE, LLC, a Delaware limited liability
company (the "Buyer").
WITNESSETH:
WHEREAS, Seller, Buyer, 21st Holdings, LLC, as Master Servicer, and the
Bank of New York as Trustee, have entered into that certain Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
___________, 2000, pursuant to which Buyer has agreed to assign certain
Insurance Settlements to the Insurance Settlements Funding Trust 2000 (the
"Trust");
WHEREAS, Buyer, to fulfill its obligation under the Pooling and Servicing
Agreement, desires to purchase, assign and transfer Insurance Settlements from
Seller from time to time;
WHEREAS, Seller desires to sell and convey Insurance Settlements to Buyer
from time to time upon the terms and conditions hereinafter set forth;
WHEREAS, Seller and Buyer anticipate that Buyer will irrevocably assign its
beneficial interests in the Insurance Settlements purchased hereunder to the
Trust and that the Trust will issue Certificates pursuant to the terms of the
Pooling and Servicing Agreement in connection with such transfer of the
Insurance Settlements to the Trust;
WHEREAS, Seller and Buyer anticipate that Buyer will assign to the Trustee
all Buyer's rights, remedies, powers and privileges under this Agreement, and
Seller agrees that all covenants and agreements made by Seller herein with
respect to the Insurance Settlements shall also be for the benefit of the
Trustee and all Certificateholders; and
WHEREAS, these recitals are incorporated in and made a part of this
Agreement.
NOW THEREFORE, for and in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Buyer do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. All capitalized terms not otherwise defined in
this Agreement shall have the meanings given such terms in the Pooling and
Servicing Agreement.
ARTICLE II
PURCHASE AND CONVEYANCE OF INSURANCE SETTLEMENTS
Section 2.1 Purchase.
(a) Subject to the terms and conditions hereinafter set forth, Seller
hereby agrees that on each Closing Date Seller shall sell and convey and hereby
does sell and convey to Buyer all Seller's right, title and interest in, to and
under the Insurance Settlements which the Buyer shall acquire from time to time
from the Seller pursuant to Section 2.2 below, all monies due or to become due
with respect to the Insurance Settlements, all proceeds of and from the
Insurance Settlements, and all of Seller's, rights, remedies, powers and
privileges under Seller's Agreements with the insureds for the sale and purchase
of Insurance Settlements; and Buyer hereby agrees to acquire such Insurance
Settlements from Seller on each Closing Date, without recourse.
(b) Seller agrees to sell and convey to Buyer only Eligible Insurance
Settlements.
(c) Seller and Buyer intend that this transaction is a sale and, at the
time Insurance Settlements are sold and conveyed to Buyer, Seller shall be
deemed, in the event a court should rule that the sale to Buyer was not a true
sale but a financing arrangement, to grant, and does hereby grant to Buyer a
security interest in all of Seller's right, title and interests in, to and under
such Insurance Settlements, all monies due or to become due with respect thereto
and all proceeds thereof; therefore, this Agreement shall also constitute a
security agreement under applicable law. In connection with each sale and,
conveyance of Insurance Settlements to Buyer, Seller agrees, at its own expense
on each Closing Date, to execute and deliver to Buyer such other instruments
with respect to the Insurance Settlements being sold and conveyed to Buyer,
which meet the requirements of applicable state law and which Buyer shall file
in the appropriate records in such jurisdictions as are necessary to perfect the
security interest granted to Buyer hereunder.
(d) In connection with each sale and conveyance of Insurance Settlements to
Buyer, Seller shall, at its own expense on or prior to each Closing Date, (1)
indicate in its computer master file that Insurance Settlements have been sold
to Buyer in accordance with this Agreement and transferred to the Trust pursuant
to the Pooling and
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Servicing Agreement for the benefit of the Certificateholders, (2) deliver to
Buyer, the Trustee, and Master Servicer a computer file, computer printout, or
microfiche list in a form readable by Buyer and Trustee, containing a true and
complete list of all such Insurance Settlements, identified by account number
and by the Insurance Settlements balance as of each such Closing Date, (3)
deliver to Buyer a written conveyance in substantially the form of Exhibit A
hereto (the "Conveyance") and (4) deliver to Buyer an Officer's Certificate of
Seller confirming the truth and correctness of the representations and
warranties set forth in Section 4.1. Upon Buyer's written request from time to
time, Seller shall use its best efforts to provide to Buyer a copy of the cover
page of the insurance policy pertaining to a Senior Insurance Settlement.
Section 2.2 Acquisition of Insurance Settlements. Whenever during the term
of this Agreement, Seller has Insurance Settlements available for purchase,
Seller shall notify Buyer in writing that Insurance Settlements are available
for purchase, stating the face amount of the Insurance Settlements and the
Insurance Settlements Purchase Price for the Insurance Settlements. Buyer shall
then immediately notify Seller in writing of the amount of Insurance Settlements
that Buyer will purchase, designating a date for the consummation of the
transfer of the Insurance Settlements, which date shall be the Closing Date.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price. On each Closing Date Buyer shall pay to Seller
the Insurance Settlements Purchase Price for the Insurance Settlements being
acquired on such date in cash or other immediately available funds, provided
that, one each Closing Date, Buyer shall withhold 33 1/3% of such Purchase Price
which shall be deposited into the Liquidity Account.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller's Representations and Warranties. Seller hereby
represents and warrants to, and agrees with, Buyer as of each Closing Date that:
(a) Organization and Good Standing. Seller is a company duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and has full corporate power, authority and right to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement. Seller is duly qualified to do business and is in good standing
in each state of the United States where the nature of its business requires it
to be so qualified.
(b) Due Qualification. Seller is duly qualified to do business and is in
good standing in each state of the United States where the nature of its
business requires it to be so qualified. Seller is neither required to qualify,
nor to register, as a foreign corporation in any
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state other than those states in which it has so qualified in order to conduct
its business and has obtained all necessary licenses and approvals required
under applicable federal and state law.
(c) Due Authorization. The execution and delivery of this Agreement, any
Conveyance, the Pooling and Servicing Agreement or any other document or
instrument delivered pursuant hereto or thereto (collectively, the "Conveyance
Documents") and the consummation of the transactions provided for in this
Agreement or any other Conveyance Document have been duly authorized by all
necessary corporate action by Seller.
(d) No Conflict. The execution and delivery of the Conveyance Documents,
the performance of the transactions contemplated by the Conveyance Documents and
the fulfillment of the terms of the Conveyance Documents will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which Seller is a party or by which it or any of its properties
are bound.
(e) No Violation. The execution and delivery of the Conveyance Documents,
the performance of the transactions contemplated by the Conveyance Documents and
the fulfillment of the terms of the Conveyance Documents will not conflict with
or violate any material Requirements of Law applicable to Seller. Seller is not
in violation of any applicable law and has paid all taxes property levied
against it.
(f) No Proceeding. There are no proceedings or investigations pending or,
to the best knowledge of Seller, threatened against Seller before any
Governmental Authority (i) asserting the invalidity of the Conveyance Documents,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by the Conveyance Documents, (iii) seeking any determination or ruling that, in
the reasonable judgment of Seller, would materially and adversely affect
Seller's performance of its obligations under the Conveyance Documents or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of the Conveyance Documents.
(g) All Consents Required. All approvals, authorizations, licenses,
consents, orders or other action of any Person or of any Governmental Authority
or Persons required in connection with the execution and delivery of the
Conveyance Documents, the performance of the transactions contemplated by the
Conveyance Documents and the fulfillment of the terms of the Conveyance
Documents have been obtained.
(h) Identification of Insurance Settlements. As of each Closing Date Seller
has (i) indicated in its computer master file of Insurance Settlements that
Insurance Settlements have been sold to Buyer in accordance with this Agreement
and transferred to the Trust pursuant to the Pooling and Servicing Agreement for
the benefit of the Certificateholders, (ii) delivered to Buyer and to the
Trustee and Master Servicer a computer file, computer printout, or microfiche
list, in a form readable by Buyer and by the Trustee and Master Servicer,
containing a true and complete list of all such Insurance Settlements,
identified by account number and by the face amount of the insurance policy as
of such Closing Date, as the case may
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be, and (iii) delivered to Buyer an Officer's Certificate of Seller confirming
the truth and correctness of the representations and warranties set forth in
this Section 4.1.
(i) Existing Financing Statements. There is not a financing statement or
similar statement or instrument of registration under the law of any
jurisdiction now on file or registered in any public office covering any
interest of any kind in the Insurance Settlements, or intended so to be, and
Seller will not execute or authorize there to be on file in any public office
any financing statement or similar statement or instrument of registration under
the laws of any jurisdiction relating to the Insurance Settlements, except any
assignments to be filed in respect of and covering and security or other
interest of Buyer or the Trustee pursuant to this Agreement or the Pooling and
Servicing Agreement.
(j) Binding Obligation. The Conveyance Documents constitute legal, valid
and binding obligations of Seller, enforceable against Seller in accordance with
their terms, except as such enforceability may be limited by Debtor Relief Laws
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law of in equity).
(k) Valid Conveyance. As of each Closing Date, the Conveyance Documents
constitute a valid sale, assignment, and conveyance to Buyer of all right,
title, and interest of Seller in, to and under the Insurance Settlements, all
monies due or to become due with respect thereto and all proceeds thereof and
Buyer will hold such property free and clear of any Lien of any Person claiming
through or under Seller, except for Liens permitted under Section 5.1(c) and
Seller shall treat the transfer of the Insurance Settlements to Buyer as a sale,
for tax and accounting purposes.
(l) Eligibility of Insurance Settlements. Seller hereby represents and
warrants to Buyer as of each Closing Date that (i) each Insurance Settlement
being sold and conveyed to Buyer is an Eligible Insurance Settlement (ii) each
such Insurance Settlements being sold and conveyed to Buyer is free and clear of
any Lien of any Person claiming through or under Seller and is in compliance, in
all material respects, with all Requirements of Law applicable to Seller and
(iii) with respect to each such Insurance Settlements, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority or Person required to be obtained, effected or given by
Seller in connection with the sale and conveyance of such Insurance Settlements
to Buyer have been duly obtained, effected or given and are in full force and
effect, and Seller does not know of any fact that will cause the Insurance
Settlements not to be paid.
(m) Selection Procedures. No selection procedure believed by Seller to be
materially adverse to the interests of Buyer or its successors and assigns or in
violation of Section 4.1(g) below were utilized by Seller in selecting the
Insurance Settlements being sold and conveyed to Buyer.
(n) Insolvency. Seller is not insolvent as of the Closing Date, as the case
may be, does not anticipate becoming insolvent as a result of the transfer of
the Insurance
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Settlements to Buyer, and the Insurance Settlements are not being transferred
for an antecedent debt.
(o) Bankruptcy Proceeding. Seller has not filed a voluntary proceeding
under the federal bankruptcy laws and has no knowledge of the filing of an
involuntary proceeding against Seller under such laws.
(p) Outstanding Principal Balance of Insurance Settlements. Seller
covenants to structure its purchase, acquisition, sale and conveyance of
Insurance Settlements so that at any given time (i) at acquisition no less than
seventy-five percent (75%) of the cumulative death benefits of the Insurance
Settlements held or beneficially owned by the Trust shall be payable by
Insurance Companies with a rating by A.M. Best of, "A" or better, or its
equivalent of other nationally recognized rating agencies, (ii) at acquisition
no more than twenty-five percent (25%) of the cumulative death benefits of the
Insurance Settlements held or beneficially owned by the Trust shall be payable
by Insurance Companies with a rating by A.M. Best of "B+" or the equivalent by
other nationally recognized rating agencies, (iii) less than ten percent (10%)
of the cumulative death benefits of the Insurance Settlements in the Trust shall
be payable by a single Insurance Company, and (iv) no more than Four Million
Dollars ($4,000,000) in Tranche I and Ten Million Dollars ($10,000,000) in
Tranche II will be cumulative death benefits relating to any one individual.
Section 4.2. Representations and Warranties of Buyer. As of each Closing
Date, Buyer hereby represents and warrants to, and agrees with, Seller that:
(a) Organization and Good Standing. Buyer us a company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power, authority and right to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver, and perform its obligations under
the Conveyance Documents.
(b) Due Qualification. Buyer is duly qualified to do business and is in
good standing in each state of the United States where the nature of its
business requires it to be so qualified. Buyer is neither required to qualify,
nor to register, as a foreign corporation in any state other than these states
in which it has so qualified in order to conduct its business and has obtained
all necessary licenses and approvals required under applicable federal and state
law.
(c) Due Authorization. The execution and delivery of the Conveyance
Documents and the consummation of the transactions provided for in the
Conveyance Documents have been duly authorized by Buyer by all necessary
corporate actions.
(d) No Conflict. The execution and delivery of the Conveyance Documents,
the performance of the transactions contemplated by the Conveyance Documents and
the fulfillment o the terms of the Conveyance Documents will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage,
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deed of trust or other instrument to which Buyer is a party or by which it or
any of its properties are bound.
(e) No Violation. The execution and delivery of the Conveyance Documents,
the performance of the transactions contemplated by the Conveyance Documents and
the fulfillment of the terms of the Conveyance Documents will not conflict with
or violate any Requirements of Law applicable to Buyer.
(f) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of Buyer, threatened against Buyer, before any
Governmental Authority (i) asserting, the invalidity of the Conveyance
Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by the Conveyance Documents, (iii) seeking any determination or
ruling that, in the reasonable judgment of Buyer, would materially and adversely
affect Buyer's performance of its obligations under the Conveyance Documents or
(iv) seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of the Conveyance Documents.
(g) All Consents Required. All approvals, authorizations, licenses,
consents, orders or other actions of any Person or of any Governmental Authority
or Person required in connection with the execution and delivery of the
Conveyance Documents, the performance of the transactions contemplated by the
Conveyance Documents and the fulfillment of the terms of the Conveyance
Documents have been obtained.
The representations and warranties set forth in this Article IV shall
survive the sale and conveyance of the Insurance Settlements to Buyer and
termination of the rights and obligations of the Buyer and Seller under this
Agreement. Upon discovery by Buyer or Seller of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
ARTICLE V
COVENANTS OF SELLER AND BUYER
Section 5.1 Seller's Covenants. In addition to the other covenants
contained herein, Seller hereby covenants, and agrees with Buyer as follows:
(a) Obligations Under Insurance Settlements. Seller shall comply with and
perform its obligations under the agreements relating to the Insurance
Settlements, except insofar as any failure so to comply or conform would not
materially and adversely affect the rights of the Trust and the
Certificateholders under the Pooling and Servicing Agreement or the
Certificates.
(b) Fees or Discounts. Except as otherwise required by any Requirements of
Law or as is deemed by the Seller to be necessary in order for Seller to
maintain its business on a competitive basis based on Seller's good faith
assessment of the nature of
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competition in its business, Seller shall not pay more than eighty percent (80%)
of the face amount of the insurance policy, for the purchase of the Insurance
Settlements.
(c) Security Interests. Except for the security interest granted hereunder
to protect Buyer's interest in the Insurance Settlements, Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on any Senior Insurance Settlement or any interest
therein; Seller will immediately notify Buyer and the Trustee of the existence
of any Lien on any Senior Insurance Settlement; and Seller will defend the
right, title and interest of Buyer and its successors and assigns in, to and
under the Insurance Settlements against all claims of third parties claiming
through or under Seller; provided, however, that nothing in this Section 5.1(c)
shall prevent or be deemed to prohibit Seller from suffering to exist upon any
of the Insurance Settlements any Liens for state, municipal or other local taxes
if such taxes shall not at the time be due and payable or if Seller shall
concurrently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
(d) Location of Books and Records. Seller shall keep copies of originals or
duplicates of all documents evidencing all Insurance Settlements at, and only
at, the locations specified on Schedule 2 hereto, and Seller will not relocate
such offices, its chief executive office or such documents or related records
and books unless Seller shall have given to Buyer not less than fifteen days
written notice of its intention to do so, clearly describing the new location.
Seller shall at all times maintain each office in which it maintains records
with respect to Insurance Settlements and its chief executive office, within the
United States of America. Additionally, Seller shall identify each Senior
Insurance Settlement in its computer and/or other records to reflect that such
Senior Insurance Settlement has been sold to Buyer and transferred by Buyer to
the Trust pursuant to the Pooling and Servicing Agreement.
(e) Servicing Agreement. On or before the initial Closing Date, Seller
shall enter into the Pooling and Servicing Agreement.
(f) Further Assurances. Seller will make, execute or endorse, acknowledge,
and file or deliver to Buyer from time to time such schedules, confirmatory
assignments, conveyances, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to the Insurance Settlements and other rights covered by this
Agreement, as Buyer may require or reasonably request.
(g) Indemnification. Seller agrees to indemnify, defend and hold Buyer
harmless from and against any and all loss, liability, damage, judgment, claim,
deficiency or expense (including interest, penalties, reasonable attorneys' fees
and amounts paid in settlement) to which Buyer may become subject insofar as
such loss, liability, damages, judgment, claim, deficiency or expense arises out
of or is based upon a breach by Seller of its representations and warranties
contained in Section 4.1 or any information certified in any Schedule delivered
by Seller hereunder being untrue in any material respect at any time. The
obligations of Seller under this Section 5.1(g) shall be considered to have been
relied upon by
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Buyer and shall survive the execution, delivery and performance of this
Agreement regardless of any investigation made by Buyer or on its behalf.
(h) Municipal and Local Taxes. Seller shall be responsible for collecting
all state, local and municipal taxes associated with the Insurance Settlements,
if any, and for remitting the same to the appropriate Govermental Authority,
together with all tax returns, reports or affidavits required by such
Governmental Authority in connection therewith.
(i) Delivery of Collections. Seller shall deposit or tender to the
Subservicer for deposit if Seller is not the Subservicer, in the Insurance
Settlements Account, all payments received by Seller, if any, with respect to
the Insurance Settlements as soon as practicable after receipt thereof by
Seller.
(j) Power of Attorney. Seller shall exercise its Power of Attorney, if any,
granted by the insureds for the benefit of the Trust with respect to Insurance
Settlements purchased by Buyer and transferred to the Trust.
(k) Filings. Seller shall at its expense perform all actions and execute
all documents to evidence, perfect maintain and enforce the title of Buyer and
the Trust the Insurance Settlements.
(l) Sale. Seller covenants that, upon each transfer of Insurance
Settlements, it will indicate in its records that (i) the Insurance Settlements
have been sold to Buyer and (ii) for tax and accounting purposes, the transfer
of the Insurance Settlements constitutes a sale to Buyer. Seller will respond to
any third party inquiries regarding such Insurance Settlements that they have
been sold to Buyer and transferred to the Trust.
(m) Maintaining Corporate Formalities and Independence. Seller covenants at
all times to maintain separate bank accounts, tax identification numbers,
financial and corporate records and the like from that of the Buyer; to conduct
independent board of directors meetings to authorize corporate actions; to pay,
its own expenses; and to otherwise observe all corporate formalities.
Section 5.2 Buyer Covenants Regarding Nondisclosure; Inspection. Buyer
hereby covenants and agrees with Seller (and agrees to cause the Trustee) not to
disclose to any Person any of the account numbers or other information contained
in the computer files or microfiche lists delivered to Buyer (or to Trustee if
Buyer so directs) pursuant to the terms of this Agreement, except as is required
in connection with the performance of the Trustee's duties under the Pooling and
Servicing Agreement or in enforcing the rights of the Certificateholders, and
except as required by law or under the Pooling and Servicing Agreement upon
appointment of a Successor Servicer. Buyer agrees (and shall cause the Trustee)
to take such measures as shall be reasonably requested by Seller to protect and
maintain the security and confidentiality of such information, and in connection
therewith shall allow Seller upon written notice from time to time to inspect
Buyer's applicable security and confidentiality arrangements during normal
business hours. Buyer shall (and shall cause the Trustee) to give Seller five
(5) days prior written notice of any disclosure made pursuant to this Section
5.2, to the extent reasonably practicable.
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ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer to purchase any Insurance Settlements on each Closing Date shall be
subject to the satisfaction of the following conditions:
(a) All representations and warranties of Seller contained in this
Agreement shall be true and correct on each Closing Date with the same
effect, as though such representations and warranties had been made on such
date;
(b) All information concerning the Insurance Settlements provided or
to be provided to Buyer shall be true and correct in all material respects
as of each Closing Date;
(c) On each Closing Date, Seller shall have executed and delivered a
Conveyance;
(d) On or before each Closing Date, Seller shall have substantially
performed Seller's obligations under this Agreement;
(e) On or before the initial Closing Date, Seller, Buyer, Master
Servicer, and the Trustee shall have entered into the Pooling and Servicing
Agreement; and
(f) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Buyer, and Buyer shall have received
from Seller copies of all documents (including, without limitation, records
of all corporate proceedings) relevant to the transactions herein
contemplated as Buyer way reasonably request.
Section 6.2 Conditions Precedent to Seller's Obligations. The obligations
of Seller to sell, assign, convey and transfer the Insurance Settlements on each
Closing Date shall be subject to the satisfaction of the following conditions:
(a) All representatives and warranties of Buyer contained in this
Agreement shall be true and correct with the same effect as though such
representations and warranties had been made on such date;
(b) Buyer shall pay the Insurance Settlements Purchase Price in
accordance with Article III hereof; and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Seller, and Seller shall have
received from Buyer copies of all documents (including, without limitation,
records of corporate proceedings) relevant to the transactions herein
contemplated as Seller may reasonably request.
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ARTICLE VII
TERM & TERMINATION
Section 7. 1 Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue in full force and effect until
(a) the Trust terminates, or (b) Seller shall (i) become insolvent, (ii), fails
to pay its debts as they become due; (iii) voluntarily seek, consent to, or
acquiesce in the benefit or benefits of any Debtor Relief Law, (iv) become a
party to (or be made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as a creditor or claimant, and, in the event such
proceeding is involuntary, the petition instituting same is not dismissed within
nine (90) days after its filing; provided, however, that Buyer shall have no
duty to continue to purchase Insurance Settlements from and after the filing of
an involuntary petition but prior to dismissal; or (v) Seller becomes unable for
any reason to convey Insurance Settlements in accordance with the provisions of
this Agreement or the Pooling and Servicing Agreement.
Section 7.2 Effect of Termination. No termination nor rejection or failure
to assume the executory obligations of this Agreement in the bankruptcy of
Seller or Buyer shall be deemed to impair or affect the obligations, including,
without limitation, pretermination breaches of representations and warranties by
Seller or Buyer.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement, any Conveyance, any other document
or instrument delivered pursuant hereto or thereto, and the rights and
obligations of the parties hereunder may not be changed orally, but only by an
instrument in writing signed by Buyer and Seller. This Agreement and any other
Conveyance Documents may be amended from time to time by Buyer and Seller to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein or to add any other provisions with respect to matters
or questions arising under this Agreement or any other Conveyance Documents
which shall not be inconsistent with the provisions of this Agreement or any
other Conveyance Documents; provided, however, that such actions shall not (as
evidenced by an opinion of counsel) adversely affect in any material respect the
interests of the Trustee, unless the Trustee shall consent thereto. Any
Conveyance executed in accordance with the provisions hereof shall not be
considered amendments to this Agreement.
Section 8.2 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CONVEYANCE
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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Section 8.3 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of Seller, 650 E. Carmel Drive, Suite 150, Carmel, Indiana 46032, (b)
in the case of Buyer, 650 E. Carmel Drive, Suite 150, Carmel, Indiana 46032; or,
as to each party, at such other address as shall be designated by such party in
a written notice to each other party.
Section 8.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any other
Conveyance Document shall for any reason whatsoever be held invalid, then such
covenants, agreement,. provisions or terms shall be deemed the remaining
covenants, agreements, provisions, or terms of this Agreement or any other
Conveyance Document and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of any other Conveyance Document.
Section 8.5 Assignment. Notwithstanding anything to the contrary contained
herein, other than Buyer's assignment of its rights, title, and interest in, to,
and under this Agreement to the Trustee for the benefit of the
Certificateholders as contemplated by the Pooling and Servicing Agreement,
neither this Agreement nor any other Conveyance Documents may be assigned by the
parties hereto.
Section 8.6 Further Assurances. Buyer and Seller agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party more fully to
effect the purpose of this Agreement and the other Conveyance Documents,
including without limitation, the execution of any documents relating to the
Insurance Settlements for filing under the provisions of the UCC or other law of
any applicable jurisdiction.
Section 8.7 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of Buyer or Seller, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privilege provided by law.
Section 8.8 Counterparts. This Agreement and all other Conveyance Documents
may be executed in two (2) or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument..
Section 8.9 Binding Effect; Third-Party Beneficiaries. This Agreement and
the other Conveyance Documents will inure to the benefit of and be binding upon
the parties hereto, the Trustee, and their respective successors and permitted
assigns.
Section 8.10 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the other Conveyance Documents set forth
the entire understanding of the parties relating to the subject matter, hereof,
and all prior understandings, written or oral,
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are superseded by this Agreement, and the other Conveyance Documents. This
Agreement and the other Conveyance Documents may not be modified, amended,
waived or supplemented except as provided herein.
Section 8.11 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 8.12 Schedules and Exhibits. The schedules and exhibits attached
and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
EFFECTIVE as of the day and date set forth above.
CAPITAL RESOURCE GROUP ONE, LLC
By:
-------------------------------------
Thomas LaRussa, President
UNITED FUNDS, LLC
By:
-------------------------------------
Thomas LaRussa, President
Attachments:
Schedule
Exhibit "A" Conveyance
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EXHIBIT "A"
FORM OF CONVEYANCE
CONVEYANCE NO. ___ OF INSURANCE SETTLEMENTS, dated as of _______________,
2000, by UNITED FUNDS, LLC, a Delaware limited liability company ("Seller"), and
CAPITAL RESOURCE GROUP ONE, LLC, a Delaware limited liability company ("Buyer")
pursuant to the Insurance Settlements Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Buyer and Seller are parties to the. Insurance Settlements
Purchase Agreement, dated as of ____________, 2000 (hereinafter referred to, as
such agreement may from time to time be amended, supplemented or otherwise
modified, as the "Insurance Settlements Purchase Agreement"); and
WHEREAS, the Buyer, the Seller, 21st Holdings, LLC as Master Servicer, and
the Bank of New York as Trustee are parties to that certain Pooling and
Servicing Agreement (the "Pooling And Servicing Agreement") dated as of
____________, 2000 pursuant to which the Buyer has agreed to transfer certain
Insurance Settlements to the Trust created by the Pooling and Servicing
Agreement on each Closing Date as such capitalized terms, are defined,
NOW THEREFORE, Seller and Buyer hereby agree as follows:
1 Defined Terms. Capitalized terms not specifically defined in this
Conveyance which are defined in the Pooling and Servicing Agreement shall have
the same meaning when used as when used in the Pooling and Servicing Agreement.
"Closing Date" shall mean, with respect to the Insurance Settlements
conveyed hereby, _____________, 2000.
2. Conveyance of Insurance Settlements. (a) For value received, Seller does
hereby sell, transfer, convey, assign, and set-over to Buyer, without recourse,
on and after the Closing Date, all right, title and interest of Seller in, to
and under the Insurance Settlements, all monies due or to become due with
respect thereto and all proceeds thereof,
(b) In connection with such conveyance, Seller agrees to record and file at
its own expense, with respect to the Insurance Settlements being conveyed hereby
such documents meeting the requirements of applicable state law in such manner
and such jurisdiction as are necessary to perfect Buyer's and the Trust's
interest in the Insurance Settlements arising from the sale and transfer of the
Insurance Settlements, from Seller to Buyer, and the transfer of such Insurance
Settlements from Buyer to the Trust.
(c) In connection with such conveyance, Seller further agrees, at its own
expense, to indicate in its computer printout or microfiche list as required by
the Insurance Settlements Purchase Agreement on or prior to the date of this
Conveyance, that Insurance
Settlements conveyed hereby have been sold by Seller to Buyer in accordance with
the Insurance Settlements Purchase Agreement and transferred by Buyer to the
Trust for the benefit of the Certificateholders.
3. Delivery of List of Insurance Settlements. Seller, does hereby agree to
deliver to Buyer (and the Trustee and Master Servicer) a computer printout or
microfiche list containing a true and complete list of all Insurance Settlements
being conveyed hereby as of the Closing Date, such Insurance Settlements being
identified by account number and the total face amount. Such list shall be
marked as Schedule 1 to this Conveyance and is hereby incorporated into and made
a part of this Conveyance and the Insurance Settlements-Purchase Agreement.
4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all
right, title and interest previously held by Seller in, to and under the
Insurance Settlements sold and conveyed hereby. Buyer further acknowledges that
prior to or simultaneously with the execution and delivery of this Conveyance,
Seller delivered to Buyer or to the Trustee computer printout or microfiche list
described in Section 3 of this Conveyance.
5. Conditions Precedent. (a) The acceptance of Buyer set forth in Section 4
and the Amendment of the Insurance Settlements Purchase Agreement set forth in
Section 6 are subject to the satisfaction by Seller, on or prior to the Closing
Date, of the condition precedent that Seller shall have delivered to Buyer a
certificate of a Vice President or more senior officer that all applicable
requirements of Article II of the Insurance Settlements Purchase Agreement have
been met and that all representations and warranties of Seller contained in the
Insurance Settlements Purchase Agreement are true and correct.
(b) The sale by Seller set forth in Section 2 and the Amendment of the
Insurance Settlements Purchase Agreement set forth in Section 6 hereinbelow are
subject to the satisfaction by Buyer, on or prior to the Closing Date, of the
following conditions precedent:
(i) All representations and warranties of Buyer contained in the
Insurance Settlements Purchase Agreement are true and correct;
(ii) Payment of the purchase price by Buyer in the accordance with the
provisions of Section 3 of Insurance Settlements Purchase Agreement; and
(iii) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Conveyance shall be
satisfactory an form and substance to Seller, and Seller shall have
received from buyer copies of all documents (including, without limitation,
records of company proceedings) relevant to the transactions herein
contemplated as Seller may reasonably have requested.
6. Amendment of the Insurance Settlements Purchase Agreement. The Insurance
Settlements Purchase Agreement is hereby amended to provide that all references
therein to the "Insurance Settlements Purchase Agreement", to "this Agreement",
and "herein"
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shall be deemed from and after the Closing Date to be a dual reference to the
Insurance Settlements Purchase Agreement as supplemented by this Conveyance.
Except, as expressly amended hereby, representations, warranties, terms,
covenants, and conditions of the Insurance Settlements Purchase Agreement shall
remain unamended and shall continue to be, and shall remain, in full force and
effect in accordance with its terms, and except as expressly provided herein
shall not constitute or, be deemed to constitute a waiver, compliance with or a
consent to noncompliance with any term, or provision of the Insurance
Settlements Purchase Agreement.
7. Counterparts. This Conveyance may be executed in two (2) or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Conveyance to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
SELLER
UNITED FUNDS, LLC, A DELAWARE LIMITED
LIABILITY COMPANY
By:
-------------------------------------
Title
BUYER
CAPITAL RESOURCE GROUP ONE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By:
-------------------------------------
Title:
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