EXHIBIT 4.9
FEDERAL HOME LOAN BANK OF ATLANTA
ADVANCES, SPECIFIC COLLATERAL PLEDGE AND SECURITY AGREEMENT
AGREEMENT, dated as of March 30, 1998, between BankUnited, FSB having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000
("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 program(s) 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 such security as requested
by the Bank by the means set forth in this Agreement;
NOW THEREFORE, the Member and the Bank agree as follows:
ARTICLE 1: DEFINITIONS
SECTION 1.01 DEFINITIONS. As used herein, the following terms shall have
the 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 benalf of, or for the account of, the Member.
(B) "Application" means a writing, signed by the Member, in such form or
forms as shall be specified by the Bank from time to time, by which the
Member requests, and which it 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, and all Capital Stock, First Mortgage Collateral, Government and
Agency Securities Collateral, other Collateral and Other Securities
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 of 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 wnich
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.
(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
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" mean 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) "Government and Agency Securities Collateral" means mortgage-backed
securities (including participation certificates) issued by the Federal
Home Loan Mortgage Corporation or the Federal National Mortgage
Association, obligations guaranteed by the Government National Mortgage
Association, and obligations issued or guaranteed by the United States or
an agency thereof.
(K) "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.
(L) "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.
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(M) "Other Collateral" means items of property other than Capital Stock
First Mortgage Collateral, Government and Agency Securities Collateral and
Other Securities Collateral which are offered as Collateral by the Member
to the Bank and are specifically accepted by the Bank as Collateral.
(N) "Other Mortgage Documents" mean mortgages secured by a first lien on
real property other than on a one-to-four unit single family dwelling and
all mortgage notes secured by such mortgages and any endorsements or
assignments thereof to the Member.
(O) "Other Securities Collateral" means securities (other than Government
and Agency Securities Collateral) representing unsubordinated interests
in, or collateralized by first lien security interests in, both the
interest and principal payments on first lien residential mortgages.
(P) "Qualifying Collateral" means Collateral other than Capital Stock
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 in the case of First Mortgage Collateral payments
which are not past due except as permitted by the Bank's Credit Policy;
(iv) in the case of First Mortgage Collateral, relates to residential real
property on which is located a one-to-four unit single family dwelling
trial 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; (vi) in the case of First Mortgage Collateral and Other
Collateral 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 nas
been specifically approved by formal resolution of the Board; and (vii) in
the case of Other Collateral, Government and Agency Securities Collateral
and Other Securities Collateral has been offered by the Member to the Bank
and specifically accepted by the Bank as Qualifying Collateral.
(Q) "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
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
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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 commitment 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 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
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 (1) 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 then 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 MAKE ADVANCES WITH RESPECT TO OUTSTANDING
COMMITMENTS. In the event that there are one or more outstanding Commitments at
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
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SECTION 2.04 AMORTIZATION OF ADVANCES. In the event that the Bank determines
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 its maturity
date or other scheduled payment dates applicable to the Advance being amortized.
ARTICLE III: SECURITY AGREEMENT
SECTION 3.01 CREATION OF SECURITY INTEREST. As security for all Indebtedness,
the Member hereby assigns, transfers, and pledges to the Bank, and grants to the
Bank a security interest in: (i) all of the Capital Stock and (ii) all of the
First Mortgage Collateral, Government and Agency Securities Collateral, Other
Collateral, and Other Securities Collateral now or hereafter owned by the
Member, and all proceeds thereof, which is specified pursuant to Section 3.04 or
delivered pursuant to Section 3.05. 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 MEMBER'S REPRESENTATION AND WARRANTIES CONCERNING COLLATERAL. The
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 lime 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 the First Mortgage Collateral and Other Collateral on the
real property securing the same is a 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;
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(F) Except as may be approved in writing by the Bank, no account holder or
other obligor owing any obligation to the Member with respect to any item
of First Mortgage Collateral or Other 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
(G) No part of any real property or interest in real property that is, or
is the subject of mortgages, included in the 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. /section/9601, el seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. /section/1801 et seq.; the Resource Conservation and
Recovery Act, 42 U.S.C. /section/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
placed 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
resuming 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 3.03 COLLATERAL MAINTENANCE REQUIREMENT.
(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. 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. The Member shall not assign, pledge,
transfer, create any security interest in, sell, or otherwise dispose of
any Collateral without the express written consent of the Bank.
(B) It any Collateral that was Qualifying Collateral ceases to be
Qualifying Collateral, 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. The Member shall
promptly specify, 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.
(C) 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 3.04 SPECIFICATION AND IDENTIFICATION OF COLLATERAL.
(A) Upon execution of this Agreement, the Member shall deliver to the Bank
a status report and accompanying securities, all in the form(s) prescribed
by the Bank, specifying and describing Qualifying Collateral in an amount
sufficient to satisfy the requirements of Section 3.03(A) hereof.
(B) Specified 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 Mortgages constituting Collateral (such
policies and certificates of insurance or guaranty relating to such
mortgages are herein called Ainsurance"), 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) The Member shall hold each set of First mortgage Documents and all
Other mortgage Documents which are 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: AThe
Mortgage/Deed of Trust and Note Relating to This Loan Have Been Assigned
To the Federal Home Loan Bank of Atlanta," or such other statement that
may be approved by the Bank from time to time. If so requested by the
Bank, in writing, the Member shall physically segregate First Mortgage
Documents and Other Mortgage Documents which are a part of such specified
Collateral from all other property of the Member in a manner satisfactory
to the Bank.
SECTION 3.05 DELIVERY OF COLLATERAL.
(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
Qualifying 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. The Member shall
also deliver to the Bank, or to a custodian designated by the Bank,
additional Collateral (which may be Collateral that is not Qualifying
Collateral) in such amount as may be required by the Bank. 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 and, in the case of First Mortgage Documents and
Other Mortgage Documents, there shall be separate endorsements and
assignments for each county or recording district in which the real
property covered by such mortgage loans is located. With respect to First
Mortgage Collateral and mortgage loans which are Other Collateral that are
delivered hereunder, the Member need only
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deliver the First Mortgage Documents and Other Mortgage Documents 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 need by the Bank or its custodian and identifying those items
of Collateral that are Qualifying Collateral.
(B) With respect to any uncertificated securities pledged to the Bank as
Collateral hereunder, the delivery requirements contained in this
Agreement shall be satisfied by the transfer of a security interest in
such securities to the Bank, such transfer to be effected in such manner
and to be evidenced by such documents as shall be reasonably specified by
the Bank.
(C) 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 that may be appointed
by the Bank hereunder, and the agents and legal counsel of the Bank and of
such custodian).
(D) 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.
SECTION 3.06 WITHDRAWAL OF COLLATERAL. Upon receipt by the Bank of writings 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 3.04 hereof, delivered pursuant to Section 3 05 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, the Bank shall promptly
redeliver, release or reassign to the Member the Collateral identified in the
Member's listing of Collateral to be withdrawn, provided that the Collateral
requested to be withdrawn is not required by the Bank to be maintained as
additional Collateral. Notwithstanding anything to the contrary herein
contained, while an Event of Default hereunder shall have occurred and be
continuing, or at any time trial the Bank reasonably and in good faith seems
itself insecure, the Member may not obtain any such withdrawal.
SECTION 3.07 REPORTS: COLLATERAL AUDITS: ACCESS.
(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, prepared by the Member's external auditor and in form or
substance acceptable to the Bank, and such financial reports and
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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 line Bank may
request, or as necessary to satisfy the requirements of the Bank, a status
report with respect to the Members 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
security 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 Members 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, line 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.
(G) Notwithstanding anything to the contrary, the Member shall De 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 line 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.
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SECTION 3.08 ADDITIONAL DOCUMENTATION. The Member shall make execute. record 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 3.09 BANK'S RESPONSIBILITIES AS TO COLLATERAL. The Bank's duty as to 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
at the Collateral. The Bank shall not xxxx any responsibility or liability for
the form, sufficiency, correctness, genuineness or legal effect of any
instrument or document constituting a pan 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 3.10 BANK'S RIGHTS AS TO COLLATERAL: POWER OF ATTORNEY. At any time or
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, out 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 Members 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 (i) sign and record a financing statement or
otherwise perfect a security interest in any or all of the Collateral, or
(ii) 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.
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 co or perform every lawful act necessary or proper in connection
therewith as fully as the
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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
anorney. 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 theMember hereunder regardless of any default by the Member, is
coupled wiln an interest, and is irrevocable for the period granted.
SECTION 3.11 SUBORDINATION OF OTHER LOANS TO COLLATERAL. The Member hereby
agrees that all mortgage notes which are part of first Mortgage Collateral or
Other Collateral (Apledged 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 or the property (or proceeds thereof) covered by
such mortgages or security agreements before any payment is made on the loans
which are not part or 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.
ARTICLE IV: DEFAULT; REMEDIES
SECTION 4.01 EVENTS OF DEFAULT: ACCELERATION. Upon the occurrence of any of the
following events or conditions of defaults (AEvent 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 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
(E) The issuance of any tax, levy, seizure, attachment, garnishement, levy
of execution, or other process with respect to the Collateral; or
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(F) Any suspension of payment by the Member to any creditor of sums due
tor 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 or 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 te 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
trial disclosed at the time of the making of any Advance or from the
condition of the Member as theretofore most recently discloseed 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 line
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 pan 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 property 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 collateral of
the Indebtedness and enforcement of the Banks 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,
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(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.
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
treat are made as a 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 theMember, 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 inis Agreement
shall, cause the Member to be; (i) in violation of its charter or articles
of incorporation, Bylaws 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 an 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 an 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 entiry, with or without recourse, any
indebtedness of the Member or participations therein, and Bank may assign or
transfer all or any part of Bank's right, title, and interest in and to this
Agreement and may assign and deliver the whole or any pan of the Collateral to
the transferee, which shall succeed to all the powers and rights of the Bank in
respect hereof, 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.
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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 circumstances. Any forbearance, 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.
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 trial 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 reproduces mechanically by the addressee and small 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 it 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 3.04 or 3.05 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
14
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 tor 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 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 granted hereunder shall be governed by me statutory
and common law of the United States and, io 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 Xxxxx of Georgia shall be deemed applicable to this
Agreement and to any Advance thereunder 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.
SECTION 5.09 SUCCESSORS AND ASSIGNS. This Agreement shall beginning 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 xxx 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 were made, provided, however,
that Section 4.03 hereof shall apply to all Advances.
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IN 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.
BankUnited, FSB
(Full Corporate Name of Member)
By: /s/ XXXXX X. XXXXXXXXX XXXXX X. XXXXXXXXX, EVP & COO
-------------------------------- ------------------------------------
(Typed Name and Title of Signer)
By:/s/ XXXXXX X. XXXXX XXXXXX X. XXXXX, EVP & CFO
-------------------------------- ------------------------------------
(Typed Name and Title of Signer)
(MEMBER'S CORPORATE SEAL)
FEDERAL HOME LOAN BANK OF ATLANTA
SENIOR VICE PRESIDENT AND CHIEF
By: XXXXX XXXXXXX CREDIT OFFICER
-------------------------------- ------------------------------------
(Authorized Officer) (Title)
VICE PRESIDENT AND DIRECTOR
By: XXXXXXX X. XXXX OF COLLATERAL SERVICES
-------------------------------- ------------------------------------
(Authorized Officer) (Title)
16
FEDERAL HOME LOAN BANK OF ATLANTA
MEMBER ACKNOWLEDGMENT
AND NOTARIZATION
STATE OF Florida}
ss:
County of Miami-Dade}
On this 31st day of March, 1998, before me personally came
Xxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxx, to me known, who,
being by me duty sworn, did depose and state that they are the Chief Operating
Officer and Chief Financial Officer of said Member; the Member
described in and which executed the above instrument; that they know the seal of
said Member; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors or other governing
body of said Member; and that they signed their names thereto be order of the
Board of Directors or other governing body of said Member and that said Xxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxx acknowledged the execution of said
instrument to be the voluntary act and deed of said Member.
/s/ XXXXX XXXXXX
-----------------------------------------------
Notary Public Signature
Notary Public in and
for the State of: Florida
(NOTARY PUBLIC'S
SEAL)
My commission expires: November 23, 2001
17
