EXHIBIT 0-x
XXXXXXX XXXX XXXX XXXX XX XXXXXXX
AGREEMENT FOR ADVANCES AND SECURITY AGREEMENT
WITH BLANKET FLOATING LIEN
AGREEMENT, dated as of April 26, 1996, between AmSouth Bank of Alabama having
its principal place of business at 0000 0xx Xxxxxx Xxxxx Xxxxxxxxxx, Xxxxxxx
("Member") and the Federal Home Loan Bank of Atlanta, 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxx, Xxxxxxx 00000 ("Bank").
WHEREAS, the Member desires from time to time to participate in the Bank's
credit programs under the terms of this Agreement, and the Bank is authorized to
extend credit to the Member pursuant to the provisions of the Federal Home Loan
Bank Act, as now and hereafter amended (the "Act"), and the regulations and
guidelines of the Federal Housing Finance Board (the "Board") or any successor
entity now and hereafter in effect (collectively, the "Regulations"); and
WHEREAS, the Bank requires that advances by the Bank be secured pursuant to
this Agreement, and the Member agrees to provide the security the Bank requests
in accordance with this Agreement.
NOW THEREFORE, the Member and the Bank agree as follows:
ARTICLE I: DEFINITIONS
Section 1.01 Definitions. As used herein, the following terms shall have the
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following meanings:
(A) "Advance" or "Advances" means any and all loans or other extensions of
credit, including all Commitments, heretofore, now or hereafter granted by
the Bank to, on behalf of, or for the account of, the Member.
(B) "Application" means a writing, signed by the Member, and in such form
or forms as shall be specified by the Bank from time to time, by which the
Member requests, and which if executed by the Bank shall together with this
Agreement evidence the terms of, an Advance or a commitment for an Advance.
(C) "Capital Stock" means all of the capital stock of the Bank held by the
Member and all payments which have been or hereafter are made on account of
subscriptions to and all unpaid dividends on such capital stock.
(D) "Collateral" means all property, including the proceeds thereof,
heretofore assigned, transferred or pledged to the Bank by the Member as
collateral for Advances or other extensions of credit prior to the date
hereof, all Capital Stock, and First Mortgage Collateral, including the
proceeds thereof, which is now or hereafter pledged to the Bank pursuant to
Section 3.01 hereof.
(E) "Collateral Maintenance Level" means the aggregate dollar amount equal
to such percentage(s) as the Bank may specify from time to time of (1) the
outstanding amounts of all Advances; (2) with respect to each outstanding
Swap Transaction, the amount for which the Member is required to maintain
Collateral; and (3) any additional obligations and liabilities of the
Member to the Bank. The Bank may increase or decrease the Collateral
Maintenance Level at any time.
(F) "Commitment" or "Commitments" means any and all agreements under which
the Bank is contractually obligated to make a loan to, or to make a future
payment on behalf or for the account of, the Member (but excluding any
obligations that the Bank may now or hereafter have to honor items or
transfer orders under a depository or similar agreement between the Bank
and the Member), regardless of whether such obligation is contingent in
whole or in part, including, without limitation, letters of credit issued
for the account of the Member.
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(G) "Confirmation of Advance" means a writing or machine readable
electronic transmission, in such form or forms as the Bank may generate
from time to time, by which the Bank agrees to and confirms the Member's
request for an Advance or a commitment for an Advance and which, together
with this Agreement, shall evidence the terms of such Advance or
commitment.
(H) "First Mortgage Collateral" means First Mortgage Documents (excluding
securitized loans and participation or other fractional interests therein)
and all ancillary security agreements, policies and certificates of
insurance or guarantees, evidences of recordation, applications,
underwriting materials, surveys, appraisals, approvals, permits, notices,
opinions of counsel and loan servicing data and all other electronically
stored and written records or materials relating to the loans evidenced or
secured by the First Mortgage Documents.
(I) "First Mortgage Documents" means mortgages and deeds of trust (herein
"mortgages") secured by a first lien on one-to-four unit single family
dwellings, and all notes, bonds or other instruments (herein "mortgage
notes") evidencing fully disbursed loans secured by such mortgages and any
endorsements or assignments thereof to the Member.
(J) "Indebtedness" means all indebtedness, now or hereafter outstanding, of
the Member to the Bank, including, without limitation, all Advances and all
other obligations to pay and liabilities of the Member to the Bank.
(K) "Lendable Collateral Value" means an amount equal to such percentage as
the Bank shall from time to time, in its sole discretion, ascribe to the
market value or unpaid principal balances of items of Qualifying
Collateral.
(L) "Qualifying Collateral" means First Mortgage Collateral which: (i) is
eligible as collateral that can be used to support the origination of
Advances under the terms and conditions of the Act and the Regulations, and
satisfies such other requirements as may be established by the Bank; (ii)
is owned by the Member free and clear of any liens, encumbrances or other
interests other than the assignment to the Bank hereunder, (iii) has not
been in default within the most recent 12-month period excepting only
payments which are not past due except as permitted by the Bank's Credit
Policy; (iv) relates to residential real property on which is located a
one-to-four unit single family dwelling that is covered by fire and hazard
insurance in an amount at least sufficient to discharge the mortgage loan
in full in case of loss and as to which all real estate taxes are current;
(v) has not been classified as substandard, doubtful, or loss by the
Member's regulatory authority or its management; and (vi) does not secure
an indebtedness on which any director, officer, employee, attorney or agent
of the Member or any Federal Home Loan Bank is personally liable unless the
acceptance of such Collateral by the Bank has been specifically approved by
formal resolution of the Board.
(M) "Swap Transaction" means an interest rate swap, interest rate cap,
floor or collar, currency exchange transaction or similar transaction
entered into between the Bank and the Member.
ARTICLE II: ADVANCES AGREEMENT
Section 2.01 Advance Documentation. The Member may apply for Advances and
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commitments for Advances by completing and submitting an Application to the Bank
or by telephonic or other unsigned communication. The Bank may suspend the use
of telephonic applications at any time. The terms of each Advance or commitment
shall be conclusively established by this Agreement and by either (i) the
Member's Application when such Application is executed by the Bank without any
change, or (ii) in the case of an Application received, completed or modified by
the Bank pursuant to a telephonic or other unsigned communication from the
Member ("telephonic application"), by a Confirmation of Advance generated by the
Bank. The Member shall be estopped from asserting any claim or defense with
respect to the terms applicable to an Advance or a commitment for an Advance
entered into pursuant to a telephonic application unless, within two (2)
business days of receipt of the Bank's Confirmation of Advance, the Member
delivers to the Bank a written notice specifying the disputed term(s) or
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condition(s) of the Advance or commitment. Within three (3) business days of the
date of the Member's receipt of the Bank's Confirmation of Advance, the Member
shall prepare, sign and submit to the Bank a completed Application conforming
to such Confirmation of Advance. Upon the request of the Bank, the Member shall
sign and deliver to the Bank a promissory note or notes in such form as the Bank
may reasonably require evidencing any Advance. Unless otherwise agreed to by the
Bank in writing, each Advance shall be made by crediting the Member's demand
deposit account(s) with the Bank.
Section 2.02 Repayment of Advances. The Member agrees to repay each Advance in
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accordance with this Agreement and the terms and conditions of the Application
or Confirmation of Advance evidencing such Advance. Interest shall be paid on
each Advance at the times specified by the Bank in writing and shall be charged
for each day that an Advance is outstanding at the rate applicable to the
Advance. The Member shall pay to the Bank, immediately and without demand,
interest on any past due principal of and interest on any Advance at an interest
rate which is the greater of (i) the rate applicable to such Advance plus one
percent (1%) or (ii) the rate in effect and being charged by the Bank from time
to time on overdrafts on demand deposit accounts of its Members, but in no event
more than any applicable limit set by the Regulations. The Member shall ensure
that, on any day on which any payment is due to the Bank with respect to
Advances or other Indebtedness, the Member's demand deposit account(s) with the
Bank has an available balance in an amount at least equal to the amounts then
due and payable to the Bank, and the Member hereby authorizes the Bank to debit
the Member's demand deposit account(s) with the Bank for all amounts due and
payable with respect to any Advance and for all other amounts due and payable
hereunder. In the event that the available balance in the Member's demand
deposit account(s) is insufficient to pay such due and payable amounts, the Bank
may, without notice to or request from the Member, apply any other deposits,
credits, or monies of the Member than in the possession of the Bank to the
payment of amounts due and payable. All payments with respect to Advances shall
be applied first to any fees or charges applicable thereto and to interest due
thereon, in such order as the Bank may determine, and then to any principal
amount thereof that is then due and payable.
Section 2.03 Right of Bank to Made Advances with Respect to Outstanding
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Commitments. In the event that there are one or more outstanding Commitments at
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the time of an Event of Default under Section 4.01 hereof, the Bank may at its
option, and without notice to or request from the Member, make an Advance by
crediting a special account of the Member with the Bank in an amount equal to
the outstanding Commitments. Amounts credited to such special account shall be
utilized by the Bank for the purpose of satisfying the Bank's obligations under
such Commitments. When all such obligations have expired or have been satisfied,
the Bank shall disburse the balance, if any, in such special account first to
the satisfaction of any amounts then due and owing by the Member to the Bank and
then to the Member or its successors in interest. Advances made pursuant to this
Section 2.03 shall be payable on demand and shall bear interest from the date
the same shall be made until paid at the rate in effect and being charged by the
Bank from time to time on overdrafts on demand deposit accounts of its members,
but in no event more than any applicable limit set by the Regulations.
Section 2.04 Amortization of Advances. In the event that the Bank determines
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that the creditworthiness of the Member, as determined from time to time by the
Bank, does not meet the requirements of the Bank, the Bank may, without
limitation of the Bank's rights upon the occurrence of an Event of Default
hereunder, require amortization by means of monthly payments of principal on all
or part of the Member's Advances. The Member agrees to begin making such monthly
amortization payments, upon thirty (30) days written notice from the Bank, in
such monthly amounts as the Bank shall specify in writing. No monthly payment
shall exceed ten percent (10%) of the original principal balance of the Advance
being amortized. Unless otherwise specified by the Bank in writing to the
Member, such monthly amortizing payments shall not extend or modify the maturity
date or other scheduled payment dates applicable to the Advance being amortized.
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ARTICLE III: SECURITY AGREEMENT
Section 3.01 Creation of Security Interest. As security for all Indebtedness,
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the Member hereby assigns, transfers, and pledges to the Bank, and grants to the
Bank a security interest in all of the Capital Stock and First Mortgage
Collateral now or hereafter owned by the Member, and all proceeds thereof,
provided, however, that at First Mortgage Collateral that is encumbered or
disposed of by the Member in conformity with the requirements of Section 3.04
(A) hereof shall not be subject to the security interest created hereunder.
Without limitation of the foregoing, all property heretofore assigned,
transferred or pledged by the Member to the Bank as collateral securing
Indebtedness and other obligations of the Member prior to the date hereof is
hereby assigned, transferred and pledged to the Bank as Collateral hereunder.
Section 3.02 Additional Collateral and Documentation; Required Substitution of
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"Advances, Specific Collateral Pledge And Security Agreement". The Member
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agrees to assign, transfer and pledge Collateral in conformity with the Bank's
"Advances, Specific Collateral Pledge and Security Agreement" (i) at any time
the Member shall not have assigned, transferred, or pledged to the Bank under
this Agreement First Mortgage Collateral which is Qualifying Collateral and
which has a Lendable Collateral Value at least equal to the Collateral
Maintenance Level or (ii) at any time the Member does not qualify under the
Bank's criteria for member eligibility to secure Advances under this Agreement
or (iii) if the Bank determines in good faith that the value of the Member's
Qualifying Collateral may not be adequately ascertained, or (iv) at any time the
Bank deems itself insecure. In addition, the Member agrees to maintain such
additional amounts of Collateral (which may be Collateral that is not Qualifying
Collateral) as may be required by the Bank in order to protect its security
position with respect to outstanding Indebtedness. If the Bank requires the
Member to substitute for this Agreement the Bank's "Advances, Specific
Collateral Pledge and Security Agreement," the Member must execute that
agreement and comply with the requirements of that agreement in all respects. To
assure that the Member provides to the Bank Qualifying Collateral with a
Lendable Collateral Value at least equal to the Collateral Maintenance Level at
all times, the Bank may require, in connection with the substitution of
agreements, that the Member make, execute, record, and deliver to the Bank
additional agreements, financing statements, notices, assignments, listings,
powers, and other documents with respect to such Collateral and the Bank's
security interest therein.
Section 3.03 Member's Representation and Warranties Concerning Collateral. The
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Member represents and warrants to the Bank, as of the date hereof and the date
of each Advance hereunder, as follows:
(A) The Member owns and has marketable title to the Collateral and has the
right and authority to grant a security interest in the Collateral and to
subject all of the Collateral to this Agreement;
(B) The information given from time to time by the Member as to each
item of Collateral is true, accurate and complete in all material
respects;
(C) All the Collateral meets the standards and requirements with respect
thereto from time to time established by the Act, the Regulations and the
Bank;
(D) The lien of each mortgage pledged as Collateral hereunder is a first,
prior, and perfected lien under applicable law;
(E) The Member has not conveyed or otherwise created, and there does not
otherwise exist, any participation interest or other direct, indirect,
legal, or beneficial interest in any Collateral on the part of anyone other
than the Bank and the Member;
(F) Except as may be approved in writing by the Bank, no account debtor or
other obligor owing any obligation to the Member with respect to any item
of First Mortgage Collateral has or will have any defenses, offsetting
claims, or other rights affecting the right of the Member or the Bank to
enforce such mortgage, mortgage note or promissory obligation, and no
defaults (or conditions that, with the passage of time or the giving of
notice or both, would constitute a default) exist under any such writings;
and
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(G) No part of any real property or interest in real property that is the
subject of First Mortgage Collateral which is Qualifying Collateral
contains or is subject to the effects of toxic or hazardous materials or
other hazardous substances (including those defined in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended,
42 U.S.C. /S/9601, et seq.; the Hazardous Materials Transportation Act, 49
U.S.C. /S/1801 et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. /S/6901 et seq.; and in the regulations adopted and publications
promulgated pursuant to said laws) the presence of which could subject the
Bank to any liability under applicable state or Federal law or local
ordinance either at any time that such property is pledged to the Bank or
upon the enforcement by the Bank of its security interest therein. The
Member hereby agrees to indemnify and hold the Bank harmless against all
costs, claims, expenses, damages, and liabilities resulting in any way from
the presence or effects of any such toxic or hazardous substances or
materials in, on, or under any real property or interest in real property
that is subject to or included in the Collateral.
Section 3.04 Collateral Maintenance Requirement.
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(A) The Member shall at all times maintain as Collateral an amount of
Qualifying Collateral which has a Lendable Collateral Value that is at
least equal to the then current required Collateral Maintenance Level. The
Member shall not assign, pledge, transfer, create any security interest in,
sell, or otherwise dispose of any Collateral if: (i) such Collateral has
been specified or identified pursuant to Section 3.05 hereof or is held by
or on behalf of the Bank pursuant to Section 3.06 hereof, or the Bank has
otherwise perfected its security interest in such Collateral; or (ii) at
the time of or immediately after such action, the Member is not or would
not be in compliance with the collateral maintenance requirements of the
first sentence of this Section 3.04 (A) or is otherwise in default under
this Agreement.
(B) Except for Collateral delivered pursuant to Section 3.06 hereof,
Collateral shall be held by the Member in trust for the benefit of, and
subject to the direction and control of, the Bank and will be physically
safeguarded by the Member with at least the same degree of care as the
Member uses in physically safeguarding its other property. Without
limitation of the foregoing, the Member shall take all action necessary or
desirable to protect and preserve the Collateral and the Bank's interest
therein, including without limitation the maintaining of insurance on
property securing First Mortgage Collateral (such policies and certificates
of insurance or guaranty relating to such mortgages are herein called
"insurance"), the collection of payments under all mortgages and under all
insurance, and otherwise assuring that all mortgages are serviced in
accordance with the standards of a reasonable and prudent mortgagee.
(C) If any Collateral that was Qualifying Collateral ceases to be
Qualifying Collateral and, after such event, the Member is not or would not
be in compliance of the collateral maintenance requirements of the first
sentence of this Section 3.04(A), the Member shall promptly notify the Bank
in writing of that fact and, if so requested by the Bank, of the reason
that the Collateral has ceased to be Qualifying Collateral. If such
Collateral was specified or identified pursuant to Section 3.05 hereof, or
delivered to the Bank pursuant to Section 3.06 hereof, the Member shall
promptly specify, identify, or deliver, as the case may be, other
Qualifying Collateral having at least the same Lendable Collateral Value as
the Collateral so requested to be withdrawn.
(D) The Bank may review the form and sufficiency of all documents
pertaining to the Collateral. Such documents must be satisfactory to the
Bank and, if not, such Collateral may not be acceptable as Qualifying
Collateral or may have a Lendable Collateral Value applied thereto that is
less than the Lendable Collateral Value otherwise applicable under the
Bank's Credit Policy, as the Bank may specify. The Bank may require that
the Member make any or all documents pertaining to the Collateral available
to the Bank for its inspection and approval.
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Section 3.05 Specification and Identification of Collateral.
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(A) Upon the Bank's written or oral request, or at such times as shall be
necessary to satisfy the requirements of the Bank, or promptly, at any time
that the Member becomes subject to any mandatory collateral specification
requirements that may be established in writing by the Bank and in any case
from time to time thereafter until such time as may be agreed upon by the
Bank in writing, the Member shall deliver to the Bank a status report and
accompanying schedules, all in the form(s) prescribed by the Bank,
specifying and describing the First Mortgage Collateral that is certified
by the Member to be Qualifying Collateral.
(B) The Member shall hold each set of First Mortgage Documents which is a
part of such specified Collateral in a separate file folder with each file
folder clearly labeled with the loan identification number and the name of
the borrower(s). Each such file folder shall be clearly marked or stamped
with the statement: "The Deed of Trust/Mortgage and Note Relating to This
Loan Have been Assigned to the Federal Home Loan Bank of Atlanta." If so
requested by the Bank, the Member shall physically segregate any First
Mortgage Collateral specified in each status report delivered pursuant to
subsection (A) of this Section 3.05 from all other property of the Member
in a manner satisfactory to the Bank.
Section 3.06 Delivery of Collateral.
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(A) Upon the Bank's written or oral request, or promptly at any time that
the Member becomes subject to any mandatory collateral delivery
requirements that may be established in writing by the Bank, and until such
time as may be agreed upon by the Bank in writing, the Member shall deliver
to the Bank, or to a custodian designated by the Bank, such First Mortgage
Collateral as may be necessary so that the Lendable Collateral Value of
Qualifying Collateral held by the Bank, or such custodian, meets or exceeds
the Collateral Maintenance Level at all times. Collateral delivered to the
Bank shall be endorsed or assigned, as appropriate, in recordable form by
the Member to the Bank, as specified by the Bank. Unless otherwise
indicated by the Bank, such endorsements or assignments may be in blanket
form provided that there shall be separate endorsements and assignments for
each county or recording district in which the real property covered by an
item of First Mortgage Collateral is located. The Member need only deliver
the First Mortgage Documents relating to the First Mortgage Collateral
delivered hereunder together with recordable assignments of the mortgages,
unless otherwise directed by the Bank. Concurrently with the initial
delivery of Collateral, the Member shall deliver to the Bank a status
report and accompanying schedules, all in the form(s) prescribed by the
Bank, specifying and describing the Collateral held by the Bank or its
custodian and certifying that such Collateral is Qualifying Collateral.
(B) The Member agrees to pay to the Bank such reasonable fees and charges
as may be assessed by the Bank to cover the Bank's overhead and other costs
relating to the receipt, holding, redelivery and reassignment of Collateral
and to reimburse the Bank upon request for all recording fees and other
reasonable expenses, disbursements and advances incurred or made by the
Bank in connection therewith (including the reasonable compensation and the
expenses and disbursements of any custodian, consultant or appraiser that
may be appointed by the Bank hereunder, and the agents and legal counsel of
the Bank and of such custodian).
(C) The Member shall, upon request of the Bank, immediately take such
other actions as the Bank shall deem necessary or appropriate to perfect
the Bank's security interest in the Collateral or otherwise to obtain,
preserve, protect, enforce or collect the Collateral or the proceeds
thereof.
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Section 3.07 Withdrawal of Collateral. Upon receipt by the Bank of writings
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in the form specified by the Bank constituting (i) a request from the Member
for the withdrawal of Collateral which has been specified or identified pursuant
to Section 3.05 hereof or has been delivered pursuant to Section 3.06 hereof, or
as to which the Bank has otherwise perfected its security interest, (ii) a
detailed listing of the Collateral to be withdrawn, and (iii) a certificate of
a responsible officer of the Member certifying as to the Qualifying Collateral
that is specified and identified by the Member or held by the Bank, as
appropriate, after such withdrawal, and upon the Bank's determination that the
Lendable Collateral Value of the remaining Qualifying Collateral is not less
than the current required Collateral Maintenance Level and that the Bank does
not require the Collateral requested to be withdrawn to be maintained as
additional Collateral, the Bank shall promptly redeliver, release or reassign to
the Member the Collateral specified in the Member's listing of the Collateral to
be withdrawn. Notwithstanding anything to the contrary herein contained, while
an Event of Default hereunder shall have occurred and be continuing, or at any
time that the Bank reasonably and in good xxxxx xxxxx itself insecure, the
Member may not obtain any such withdrawal.
Section 3.08 Reports: Collateral Audits; Access.
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(A) The Member shall furnish to the Bank annually, and at such other times
as the Bank may request, an audit report with respect to the Member's
Collateral and Qualifying Collateral, prepared by the Member's external
auditor and in form and substance acceptable to the Bank, and such financial
reports and other information relating to the Member's financial condition
as the Bank may reasonably request.
(B) The Member shall furnish to the Bank at such times as the Bank may
request, or as necessary to satisfy the requirements of the Bank, a status
report with respect to the Member's Collateral prepared by the Member in
form and substance acceptable to the Bank, and as of a date within two weeks
of the report due date. The status report shall be a written report covering
such matters regarding the Collateral as the Bank may require, including
listings of mortgages and unpaid principal balances thereof and
certifications concerning the status of payments on mortgages and of taxes
and insurance on property securing mortgages.
(C) If so requested by the Bank, the Member shall promptly report to the
Bank any event which reduces the principal balance of any mortgage or other
item of Collateral by five percent (5%) or more, whether by prepayment,
foreclosure sale, insurance or guaranty payment or otherwise.
(D) The Member shall give the Bank access at all reasonable times to
Collateral in the Member's possession and to the Member's books and records
of account relating to such Collateral, for the purpose of the Bank's
examining, verifying or reconciling the Collateral and the Member's reports
to the Bank thereon.
(E) If the Member becomes aware or has reason to believe that the Lendable
Collateral Value of the Member's Qualifying Collateral has fallen below the
Collateral Maintenance Level, or that a contingency exists which with the
lapse of time could result in the Member failing to meet the Collateral
Maintenance Level, the Member shall immediately notify the Bank.
(F) All Collateral and any matters relating thereto shall be subject to
audit and verification by or on behalf of the Bank. Such audits and
verifications may occur without notice during the Member's normal business
hours or upon reasonable notice at such other times as the Bank may
reasonably request. The Member shall provide access to, and shall make
adequate working facilities available to, the representatives or agents of
the Bank for purposes of such audits. Reasonable fees and charges may be
assessed to the Member by the Bank to cover overhead and other costs
relating to such audit and verification.
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(G) Notwithstanding anything to the contrary, the Member shall be solely
responsible for the accuracy and adequacy of all information and data in
each audit or status report (or other writing specifying and describing any
Collateral) submitted to the Bank, regardless of the form in which
submitted. The Bank shall have no duty to make any independent examination
of or calculation with respect to the information submitted in an audit or
status report (or in any written schedule that may be submitted by the
Member) and, without limiting the generality of the foregoing, the Bank
makes no representation or warranty as to the validity, accuracy, or
completeness of any information contained in any written records of the Bank
concerning, or of any response to, such audit or status report.
Section 3.09 Additional Documentation. The Member shall make, execute, record
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and deliver to the Bank such financing statements, notices, assignments,
listings, powers, and other documents with respect to the Collateral and the
Bank's security interest therein and in such form as the Bank may reasonably
require.
Section 3.10 Bank's Responsibilities as to Collateral. The Bank's duty as to
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the Collateral shall be solely to use reasonable care in the custody and
preservation of the Collateral in its possession, which shall not include any
steps necessary to preserve rights against prior parties nor the duty to send
notices, perform services, or take any action in connection with the management
of the Collateral. The Bank shall not have any responsibility or liability for
the form, sufficiency, correctness, genuineness or legal effect of any
instrument or document constituting a part of the Collateral, or any signature
thereon or the description or misdescription, or value of property represented,
or purported to be represented, by any such document or instrument. The Member
agrees that any and all Collateral may be removed by the Bank from the state or
location where situated, and may be subsequently dealt with by the Bank as
provided in this Agreement.
Section 3.11 Bank's Rights as to Collateral; Power of Attorney. At any time or
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times, at the expense of the Member, the Bank may in its discretion, before or
after the occurrence of an Event of Default as defined in Section 4.01 hereof,
in its own name or in the name of its nominee or of the Member, do any or all
things and take any and all actions that are pertinent to the protection of the
Bank's interest hereunder and are lawful under the laws of the State of Georgia,
including, but not limited to, the following:
(A) Terminate any consent given hereunder;
(B) Notify obligors on any Collateral to make payments thereon directly to
the Bank;
(C) Endorse any Collateral in the Member's name;
(D) Enter into any extension, compromise, settlement, or other agreement
relating to or affecting any Collateral;
(E) Take any action the Member is required to take or which is otherwise
reasonably necessary to (1) sign and record a financing statement or
otherwise perfect a security interest in any or all of the Collateral or (2)
to obtain, preserve, protect, enforce or collect the Collateral;
(F) Take control of any funds or other proceeds generated by the Collateral
and use the same to reduce indebtedness as it becomes due; and
(G) Cause the Collateral to be transferred to its name or the name of its
nominee.
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The Member hereby appoints the Bank as its true and lawful attorney, for and on
behalf of the Member and in its name, place and stead, to prepare, execute and
record endorsements and assignments to the Bank of all or any item of
Collateral, giving or granting to the Bank, as such attorney, full power and
authority to do or perform every lawful act necessary or proper in connection
therewith as fully as the Member might or could do. The Member hereby ratifies
and confirms all that the Bank shall lawfully do or cause to be done by virtue
of this special power of attorney. This special power of attorney is granted for
a period commencing on the date hereof and continuing until the discharge of all
indebtedness and all obligations of the Member hereunder regardless of any
default by the Member, is coupled with an interest, and is irrevocable for the
period granted.
Section 3.12 Subordination of Other Loans to First Mortgage Collateral. The
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Member hereby agrees that all mortgage notes which are part of the First
Mortgage Collateral ("pledged notes") shall have priority in right and remedy
over any other loans, whenever made, and, however evidenced, which are also
secured by the mortgages or security agreements securing the pledged notes. The
pledged notes shall be satisfied out of the property (or proceeds thereof)
covered by such mortgages or security agreements before any payment is made on
the loans which are not part of the Collateral. To this end, the Member hereby
subordinates the lien of such mortgages and security agreements with respect to
such other loans to the lien of such mortgages and security agreements with
respect to the pledged notes. The Member further agrees to retain possession of
all notes or other instruments evidencing such other loans and not to pledge,
assign, or transfer the same, except insofar as such other loans may be pledged
to the Bank as part of the Collateral.
Section 3.13 Proceeds of Collateral. The Member, as the Bank's agent, shall
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collect all payments when due on all Collateral. If the Bank so requires, the
Member shall hold such collections separate from its other monies in one or more
designated cash collateral accounts maintained at the Bank and apply them to the
reduction of indebtedness as it becomes due; otherwise, the Bank consents to the
Member's use and disposition of all such collections.
ARTICLE IV: DEFAULT; REMEDIES
Section 4.01 Events of Default: Acceleration. Upon the occurrence of any of the
--------------------------------
following events or conditions of default ("Event of Default"), the Bank may at
its option, by a notice to the Member, declare all or any part(s) of the
indebtedness and accrued interest thereon, including any prepayment fees or
charges which are applicable to any Advance, to be immediately due and payable
without presentment, demand, protest, or any further notice:
(A) Failure of the Member to pay when due any interest on or principal of
any Advance; or
(B) Failure of the Member to perform any promise or obligation or to satisfy
any condition or liability contained herein, in any Application, in any
Confirmation of Advance or in any other agreement to which the Member
and the Bank are parties; or
(C) Evidence coming to the attention of the Bank that any representations,
statements, or warranties made or furnished in any manner to the Bank by
or on behalf of the Member in connection with any Advance or Swap
Transaction, any specification or description of Qualifying Collateral
or any report or certification concerning the status, value, or
principal balance of any item of Collateral was false in any material
respect when made or furnished; or
(D) Failure of the Member to maintain adequate Qualifying Collateral free of
any encumbrances or claims as required herein; or
9
(E) The issuance of any tax, levy, seizure, attachment, garnishment, levy
of execution, or other process with respect to the Collateral; or
(F) Any suspension of payment by the Member to any creditor of sums due or
the occurrence of any event which results in another creditor having the
right to accelerate the maturity of any indebtedness of the Member under any
security agreement, indenture, loan agreement, or comparable undertaking; or
(G) Appointment of a conservator, receiver, or similar official for the
Member or any subsidiary of the Member, of the Member's property, entry of a
judgment or decree adjudicating the Member or any subsidiary of the Member
insolvent or bankrupt or an assignment by the Member or any subsidiary of
the Member for benefit of creditors; or
(H) Sale by the Member of all or a material part of the Member's assets or
the taking of any other action by the Member to liquidate or dissolve; or
(I) Termination for any reason of the Member's membership in the Bank, or
the Member's ceasing to be a type of entity that is eligible under the Act
to become a member of the Bank; or
(J) Merger, consolidation or other combination of the Member with an entity
which is not a member of the Bank if the nonmember entity is the surviving
entity; or
(K) With respect to Advances made pursuant to Section 11(g)(4) of the Act,
if the creditor liabilities of the Member, excepting liabilities to the
Bank, are increased in any manner to an amount exceeding five percent (5%)
of the Member's net assets; or
(L) The Bank reasonably and in good faith determines that a material
adverse change has occurred in the financial condition of the Member from
that disclosed at the time of the making of the Advance or from the
condition of the Member as theretofore most recently disclosed to the Bank.
Section 4.02 Remedies. Upon the occurrence of any Event of Default, the Bank
---------
shall have all of the rights and remedies provided by applicable law which
shall include, but not be limited to, all of the remedies of a secured party
under the Uniform Commercial Code as in effect in the State of Georgia. In
addition, the Bank may take immediate possession of any of the Collateral or any
part thereof wherever the same may be found. The Bank may sell, assign and
deliver the Collateral or any part thereof at public or private sale for such
price as the Bank deems appropriate without any liability for any loss due to
decrease in the market value of the Collateral during the period held. The Bank
shall have the right to purchase all or part of the Collateral at such sale. If
the Collateral includes insurance or securities which will be redeemed by the
issuer upon surrender, or any accounts or deposits in the possession of the
Bank, the Bank may realize upon such Collateral without notice to the Member.
If any notification of intended disposition of any of the Collateral is
required by applicable law, such notification shall be deemed reasonable and
properly given if given as provided by applicable law or in accordance with
Section 5.06 hereof at least 5 days before any such disposition. The proceeds of
any sale shall be applied in the order that the Bank, in its sole discretion,
may choose. The Member agrees to pay all the costs and expenses of the Bank in
the collection of the Indebtedness and enforcement of the Bank's rights and
remedies in case of default, including, without limitation, reasonable
attorneys' fees. The Bank shall, to the extent required by law, apply any
surplus, after (i) payment of the Indebtedness, (ii) provision for repayment to
the Bank of any amounts to be paid or advanced under Outstanding Commitments,
and (iii) payment of all costs of collection and enforcement, to the claims of
person(s) legally entitled thereto, with any remaining surplus paid to the
Member. The Member shall be liable to the Bank for any deficiency remaining.
10
Section 4.03 Payment of Prepayment Charges. Any prepayment fees or charges
------------------------------
applicable to an Advance shall be payable at the time of any voluntary or
involuntary payment of all or part of the principal of such Advance prior to the
originally scheduled maturity thereof, including without limitation, payments
that are made as part of a liquidation of the Member or that become due by
operation of law or as a result of an acceleration pursuant to Section 4.01
hereof, whether such payment is made by the Member, by a conservator, receiver,
liquidator or trustee of or for the Member, or by any successor to or any
assignee of the Member.
ARTICLE V: MISCELLANEOUS
Section 5.01 General Representations and Warranties by the Member. The Member
-----------------------------------------------------
hereby represents and warrants that, as of the date hereof and the date of each
Advance hereunder:
(A) The Member is not, and neither the execution of nor the performance of
any of the transactions or obligations of the Member under this Agreement
shall, with the passage of time, the giving of notice or otherwise, cause
the Member to be: (i) in violation of its charter or articles of
incorporation, by-laws, the Act or the Regulations, any other law or
administrative regulation, or any court decree; or (ii) in default under
or in breach of any material indenture, contract or other instrument or
agreement to which the Member is a party or by which it or any of its
property is bound.
(B) The Member has full corporate power and authority and has received all
corporate and governmental authorizations and approvals (including without
limitation those required under the Act and the Regulations) as may be
required to enter into and perform its obligations under this Agreement, to
borrow each Advance and to obtain each commitment for Advance.
(C) The information given by the Member in any document provided, or in
any oral statement made, in connection with an application or request for
an Advance or commitment for Advance, is true, accurate and complete in all
material respects.
Section 5.02 Assignment. The Bank may assign or negotiate to any other Federal
-----------
Home Loan Bank or to any other person or entity, with or without recourse, any
Indebtedness of the Member or participations therein, and the Bank may assign or
transfer all or any part of the Bank's right, title, and interest in and to this
Agreement and may assign and deliver the whole or any part of the Collateral to
the transferee, which shall succeed to all the powers and rights of the Bank in
respect thereof, and the Bank shall thereafter be forever relieved and fully
discharged from any liability or responsibility with respect to the transferred
Collateral. The Member may not assign or transfer any of its rights or
obligations hereunder without the express prior written consent of the Bank.
Section 5.03 Discretion of the Bank to Grant or Deny Advances. Nothing
-------------------------------------------------
contained herein or in any documents describing or setting forth the Bank's
credit program and credit policies shall be construed as an agreement or
commitment on the part of the Bank to grant Advances or extend commitments for
Advances hereunder, the right and power of the Bank in its discretion to either
grant or deny any Advance or commitment for an Advance requested hereunder being
expressly reserved. The determination by the Bank of Lendable Collateral Value
shall not constitute a determination by the Bank that the Member may obtain
Advances or commitments for Advances in amounts up to such Lendable Collateral
Value.
Section 5.04 Amendment: Waivers. No modification, amendment or waiver of any
-------------------
provision of this Agreement or consent to any departure therefrom shall be
effective unless in a writing executed by a responsible officer of the party
against whom such change is asserted and shall be effective only in the specific
instance and for the purpose of which given. No notice to or demand on the
Member in any case shall entitle the Member to any other or further notice or
demand in the same, or similar or other
11
circumstances. Any forebearance, failure or delay by the Bank in exercising any
right, power or remedy hereunder shall not be deemed to be a waiver thereof, and
any single or partial exercise by the Bank of any right, power or remedy
hereunder shall not preclude the further exercise thereof. Every right, power
and remedy of the Bank shall continue in full force and effect until
specifically waived by the Bank in writing.
Section 5.05 Jurisdiction; Legal Fees. In any action or proceeding brought by
-------------------------
the Bank or the Member in order to enforce any right or remedy under this
Agreement, the parties hereby consent to, and agree that they will submit to,
the jurisdiction of the United States District Court for the Northern District
of Georgia or, if such action or proceeding may not be brought in Federal court,
the jurisdiction of the courts of the State of Georgia located in the City of
Atlanta. The Member agrees that if any action or proceeding is brought by the
Member seeking to obtain any legal or equitable relief against the Bank under or
arising out of this Agreement or any transaction contemplated hereby and such
relief is not granted by the final decision, after any and all appeals, of a
court of competent jurisdiction, the Member will pay all attorneys' fees and
other costs incurred by the Bank in connection therewith.
Section 5.06 Notices. Except as provided in the last sentence of this Section,
--------
any written notice, advice, request, consent or direction given, made or
withdrawn pursuant to this Agreement shall be either in writing or transmitted
electronically and reproduced mechanically by the addressee, and shall be given
by first class mail, postage prepaid, by telecopy or other facsimile
transmission, or by private courier or delivery service. All non-oral notices
shall be deemed given when actually received at the principal office of the Bank
or the Member, as appropriate. All notices shall be designated to the attention
of an office or section of the Bank or of the Member if the Bank or the Member
has made a request for the notice to be so addressed. Any notice by the Bank to
the Member pursuant to Sections 3.05 and 3.06 hereof may be oral and shall be
deemed to have been duly given to and received by the Member at the time of
the oral communication.
Section 5.07 Signatures of Member. For purposes of this Agreement, documents
---------------------
shall be deemed signed by the Member when a signature of an authorized signatory
or an authorized facsimile thereof appears on the document. The Bank may rely on
any signature or facsimile thereof which reasonably appears to the Bank to be
the signature of an authorized person, including signatures appearing on
documents transmitted electronically to and reproduced mechanically at the Bank.
The Secretary or an Assistant Secretary of the Member shall from time to time
certify to the Bank on forms provided by the Bank the names and specimen
signatures of the persons authorized to apply on behalf of the Member to the
Bank for Advances and commitments for Advances and otherwise act for and on
behalf of the Member in accordance with this Agreement. Such certifications are
incorporated herein and made a part of this Agreement and shall continue in
effect until expressly revoked in writing by the Member notwithstanding that
subsequent certifications may authorize additional persons to act for and on
behalf of the Member.
Section 5.08 Applicable Law; Severability. In addition to the terms and
-----------------------------
conditions specifically set forth herein and in any application or confirmation
of Advance between the Bank and the Member, this Agreement and all Advances and
all commitments for Advances shall be governed by the statutory and common law
of the United States and, to the extent Federal law incorporates or defers to
state law, the laws (exclusive of the choice of law provisions) of the State of
Georgia. Notwithstanding the foregoing, the Uniform Commercial Code as in effect
in the State of Georgia shall be deemed applicable to this Agreement and to any
Advance hereunder and shall govern the attachment and perfection of any security
interest granted hereunder. In the event that any portion of this Agreement
conflicts with applicable law, such conflict shall not affect other provisions
of this Agreement which can be given effect without the conflicting provision,
and to this end the provisions of this Agreement are declared to be severable.
12
Section 5.09 Successors and Assigns. This Agreement shall be binding upon and
-----------------------
inure to the benefit of the successors and permitted assigns of the Member and
the Bank.
Section 5.10 Entire Agreement. This Agreement embodies the entire agreement and
-----------------
understanding between the parties hereto relating to the subject matter hereof
and supersedes all prior agreements between such parties which relate to such
subject matter. Notwithstanding the above, rates of interest, repayment
schedules, and fees and other charges applicable to Advances and commitments for
Advances made by the Bank to the Member prior to the execution of this Agreement
shall continue to be governed exclusively by the terms of the prior agreements
pursuant to which such Advances and commitments for Advances were made,
provided, however, that Section 4.03 hereof shall apply to all Advances.
WITNESS WHEREOF, Member and Bank have caused this Agreement to be signed
in their names by their duly authorized officers as of the date first above
mentioned.
AmSouth Bank of Alabama
-------------------------------
(Full Corporate Name of Member)
By: /s/ Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx - Executive Vice President
------------------------- --------------------------------------------
(Authorized Signature) (Typed Name and Title of Signer)
By: /s/ Xxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxxx - Vice President
------------------------- --------------------------------------------
(Authorized Signature) (Typed Name and Title of Signer)
(SEAL)
FEDERAL HOME LOAN BANK OF ATLANTA
Senior Vice President
By: Cane Xxxxxxx and Chief Credit Officer
------------------------- --------------------------------
(Authorized Officer) (Title)
Vice President and
By: Xxxxxxx X. Xxxx Director of Collateral Services
------------------------- --------------------------------
(Authorized Officer) (Title)
13
FEDERAL HOME LOAN BANK OF ATLANTA
ADDENDUM TO THE "AGREEMENT FOR ADVANCES AND SECURITY AGREEMENT WITH BLANKET
---------------------------------------------------------------------------
FLOATING LIEN" AND "ADVANCES, SPECIFIC COLLATERAL PLEDGE AND SECURITY AGREEMENT"
--------------------------------------------------------------------------------
MEMBER and BANK, as those terms are defined in the Agreement for Advances and
Security Agreement with Blanket Floating Lien or the Advances, Specific
Collateral Pledge and Security Agreement ("Agreement") dated as of April 26,
1996, between the Member and the Bank, desire to modify the Agreement with
regard to the means by which the Member may apply for advances. Accordingly, the
Member and the Bank have executed this Addendum as of May 3, 1996, and agree
that it shall be a part of and modify the Agreement, as follows:
A. The fifth sentence of Section 2.01 is amended by inserting the phrase
", if required by the Bank," following the word "shall".
B. Section 5.01 is amended by inserting the following paragraph:
(D) If the Member is a saving association and, pursuant to the Qualified
Thrift Lender requirements of the Office of Thrift Supervision, it
becomes ineligible for Bank advances, the Member shall immediately
provide the Bank with written notice of such ineligibility.
C. Section 5.03 is amended by inserting the following at the end thereof:
The Bank shall not honor advance commitments previously made to the
Member if the Member's access to Bank advances is subsequently
restricted pursuant to the Federal Home Loan Bank Act or the regulations
or guidelines of the Federal Housing Finance Board.
IN WITNESS WHEREOF, Member and Bank have caused this Addendum to be signed
in their name by their duly authorized officers.
AmSouth Bank of Alabama
--------------------------------------------------------------------------------
(Full Corporate Name of Member)
By: /s/ Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx Executive Vice President
--------------------------- -------------------------------------------
(Authorized Signature) (Typed Name and Title of Signer)
By: /s/ Xxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxxx Vice President
--------------------------- -------------------------------------------
(Authorized Signature) (Typed Name and Title of Signer)
(Member's Corporate Seal)
FEDERAL HOME LOAN BANK OF ATLANTA
By:
-------------------------- -------------------------------------------
(Authorized Officer) (Title)
By:
-------------------------- -------------------------------------------
(Authorized Officer) (Title)
