EXHIBIT 10.3
COLLATERAL ASSIGNMENT OF LOAN DOCUMENTS
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THIS COLLATERAL ASSIGNMENT OF LOAN DOCUMENTS ("Assignment") is made and
entered as of the __ day of ____________, 200_, by and between FOUNDATION
CAPITAL RESOURCES, INC., a Georgia corporation located at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as "Assignor"), and
RELIANCE TRUST COMPANY, as Trustee for Assignor's 2002 A Certificates of
Indebtedness, a Georgia trust company located at 0000 Xxxxxxxxx Xxxx, X.X.,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Trustee").
RECITALS:
WHEREAS, as of January 1, 2002, Assignor entered into a Trust Indenture
with Trustee (hereinafter referred to as the "Indenture" which term shall
include any subsequent amendments) with respect to its $55,000,000 of
Certificates of Indebtedness, Series 2002 A (hereinafter referred to as the
"Certificates").
WHEREAS, pursuant to the Indenture, Assignor is obligated to assign to
the Trustee from time to time Eligible Mortgage Loans and other collateral to
maintain at all times a Basic Maintenance Amount of Pledged Assets to secure the
Certificates.
WHEREAS, Assignor is the owner of the loan documents described on
Exhibit "A" attached hereto incorporated herein by this reference, together with
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any extensions, renewals, modifications and substitutions thereof (hereinafter
referred to as the "Loan Documents"), which Assignor desires to transfer and
assign to the Trustee pursuant to the terms of the Indenture to become Pledged
Assets thereunder.
NOW, THEREFORE, for and in consideration of the covenants contained
herein, the sum of Ten Dollars ($10.00) in hand paid, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged at and before the sealing of these presents, the parties hereto
hereby agree as set forth herein.
ARTICLE I: DEFINITIONS
Section 1.01. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Indenture.
ARTICLE II: TRANSFER AND ASSIGNMENT
Section 2.01. Assignor hereby grants, transfers, and assigns to the
Trustee, its successors and assigns, a security interest in and makes a
collateral assignment to the Trustee of, all of its right, title, and interest
and powers in and to the Loan Documents. The Assignment as set forth herein
includes all of Assignor's right, title, and interest in and to (i) any and all
indebtedness evidenced by the Loan Documents, (ii) any property held as
collateral for such indebtedness, and (iii) all of the rights and powers of
Assignor as set forth in the Loan Documents, including without limitation, the
right of foreclosure contained in any mortgage, deed of trust, security deed or
security interest contained in the Loan Documents.
Section 2.02. This Assignment is made to secure the payment of the
indebtedness represented by the Certificates and secured in part by the
Indenture together with all renewals or extensions thereof and any future
advances made thereunder and amounts owing thereunder (the aforesaid
indebtedness and obligations hereinafter collectively referred to as the
"Obligations").
ARTICLE III: REPRESENTATIONS AND WARRANTIES
Section 3.01. Assignor warrants, represents and covenants to and with
the Trustee as follows:
A. It is owner and holder of the Loan Documents and it has made no
other assignments of any of its rights under the Loan Documents to any
other person or entity.
B. It has committed no act or omitted to do any act which might prevent
Trustee from, or limit Trustee in, acting under any of the provisions
contained in the Loan Documents.
C. This Assignment has been duly authorized, executed and delivered by
Assignor and constitutes a legal, valid and binding obligation
enforceable against Assignor in accordance with its terms. The
Assignor, and each party executing the Assignment on behalf of
Assignor, has the legal capacity to enter into this Assignment.
D. There is no provision in the Loan Documents which would interfere
with the right of or prevent Assignor from executing this Assignment
and performing all of Assignor's obligations hereunder.
E. No Event of Default or event which would be an Event of Default upon
the giving of notice, lapse of time, or both, has occurred under the
Loan Documents and is continuing as of the date hereof.
F. Assignor shall not permit or waive any default in the performance of
any obligations arising under the Loan Documents without the prior
written consent of Trustee.
ARTICLE IV: AGREEMENTS
Section 4.01. So long as there shall exist no continuing Event of
Default, Assignor shall have the right to collect any and all payments under the
Pledged Assets.
Section 4.02. If any Event of Default does exist and extends beyond any
period given to cure such default as set forth in the Indenture, Trustee shall
have the right, in its sole discretion, and without notice: (i) to notify the
maker of the Loan Documents, collect all payments, rents, profits, proceeds, and
income of whatever nature or type arising out of or connected with the Loan
Documents or any one of them, (ii) to exercise its rights as secured party
holding a security interest in the Pledged Assets, (iii) to exercise any and all
rights and remedies granted to a secured party upon default under the Uniform
Commercial Code, as adopted and enacted by the state or states where any of the
Pledged Assets are located, (iv) to proceed to perform any and all obligations
of Assignor contained in any of the Loan Documents assigned hereunder and
exercise all rights of Assignor therein contained as fully as Assignor itself,
but notwithstanding the foregoing, nothing contained herein shall obligate
Trustee to perform any of said obligations unless it elects to do so in its sole
discretion, (v) to do all other acts which Trustee
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may deem necessary or proper to protect its interest in the Loan Documents, or
(vi) to exercise other rights on a cumulative basis provided at law or in
equity.
Section 4.03. Upon payment in full of the Obligations, this Assignment
shall be null and void and be of no further force and effect.
Section 4.04. The parties agree that wherever used in this Assignment,
unless the context clearly indicates a contrary intent, the words "Assignor" and
"Trustee" shall include their respective heirs, executors, legal
representatives, administrators, successors and assigns. The word "Loan" shall
also include one or more loans and the pronouns used herein shall include, when
appropriate, either gender and both singular and plural.
Section 4.05. Assignor shall execute and deliver to Trustee,
concurrently with the execution of this Assignment, and at any time or times
hereafter at the request of Trustee, all assignments, endorsements, conveyances,
assignments, financing statements, renewal financing statements, security
agreements, affidavits, notices and all other agreements, instruments and
documents that Trustee reasonably requests shall take any and all other steps
reasonably requested by Trustee, in order to perfect and maintain the security
interests, assignments and liens granted herein by Assignor to Trustee. In the
event that the Eligible Mortgage Loan is collateralized by book-entry mortgage
bonds, Trustee shall (i) make an entry in the bond registry indicating that the
mortgage bonds have been collaterally assigned to Trustee, and (ii) send a
written confirmation of same to Assignor.
Section 4.06. Trustee's failure at any time or times hereafter to
require strict performance by Assignor of any of the provisions, warranties,
terms and conditions contained in this Assignment or the Loan Documents shall
not waive, affect or diminish any right of Trustee at any time or times
hereafter to demand strict performance therewith and with respect to any other
provisions, warranties, terms and conditions contained herein or the Loan
Documents, and the waiver by Trustee of any Event of Default shall not
constitute a waiver any other Event of Default, whether prior or subsequent
thereto, and whether of the same or a different type.
Section 4.07. To the extent that any of Assignor's liabilities are now
or hereafter secured by property other than the Loan Documents, or by a
guarantee, property of any other person, then Trustee shall have the right to
proceed against such other property or guarantee upon Assignor's default in the
payment of any of Assignor's liabilities or in any of the terms, covenants or
conditions contained in this Assignment or in any Loan Documents. Trustee shall
also have the right, in Trustee's sole discretion and without regard to default
to determine which rights, repayment terms, security, liens, security interest
or remedies Trustee shall at any time pursue, relinquish, subordinate, modify or
take any other action with respect thereto, without in any way modifying or
affecting any of them or any of Trustee's rights or Assignor's liabilities under
this Assignment or the Loan Documents.
Section 4.08. The rights and remedies of the Trustee hereunder and
under the Loan Documents shall be cumulative and non-exclusive of any other
rights or remedies which the Trustee may have under any other instrument or
agreement, by operation of law or otherwise.
Section 4.09. The terms of this Assignment shall be governed by and
interpreted in accordance with the laws of the State of Georgia, and the rights
and privileges conveyed hereunder shall inure to the benefit of Trustee, its
legal representatives, successors, and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
under seal or have caused this Assignment to be executed by duly authorized
corporate officers and the corporate seal affixed hereto effective the date and
year first above written.
ASSIGNOR:
FOUNDATION CAPITAL RESOURCES,
INC., a Georgia corporation
By:_________________________
Name:_______________________
Title:______________________
[CORPORATE SEAL]
[INSERT STATE ACKNOWLEDGMENT]
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TRUSTEE:
RELIANCE TRUST COMPANY, a Georgia
trust company
By:______________________________
Name:____________________________
Title:___________________________
[CORPORATE SEAL]
[INSERT STATE ACKNOWLEDGMENT]
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EXHIBIT "A"
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ASSIGNED LOAN DOCUMENTS
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[USE FOR MORTGAGE LOANS]
1. Secured Note dated ___________________ in the original principal amount of
$________ from __________________, a ____________________ (hereinafter
referred to as "Borrower") to Assignor.
2. [Mortgage] [Deed of Trust] [Deed to Secure Debt] and Security Agreement
from Borrower to Assignor to secure indebtedness in the original principal
amount of $______________with respect to property located in
_______________, _______________, recorded in Deed Book ____, Page___, in
the office of the ___________________________, ____________ County,
_________________.
3. UCC Financing Statement with Borrower, as debtor, and Assignor, as secured
party, recorded in Deed Book ____, Page ____, in the office of the
_____________________________, _________________ County, ________________.
4. UCC Financing Statement with Borrower, as debtor, and Assignor, as secured
party, recorded as instrument number _____________ in the office of the
___________________ Secretary of State.
5. Agreement Regarding Interest and Charges dated ______________________ by
and between Borrower and Assignor.
6. All other documents, instruments, contracts, insurance or other agreements
evidencing the foregoing transaction or entered into in connection
therewith.
[USE FOR BOND-COLLATERALIZED LOANS]
1. Promissory Note dated ___________________ in the original principal amount
of $________ from __________________, a ____________________ (hereinafter
referred to as "Borrower") to Assignor.
2. Loan, Pledge and Security Agreement dated ______________________ by and
between Borrower and Assignor.
3. Control Agreement dated ______________________ by and among Borrower,
Assignor and Trustee.
4. All other documents, instruments, contracts, insurance or other agreements
evidencing the foregoing transaction or entered into in connection
therewith.
