ADVANCES AND SECURITY AGREEMENT
Exhibit
4.1
This
ADVANCES
AND SECURITY AGREEMENT
(this
“Agreement”),
dated
as of the earlier of the date of execution by the Bank (as hereinafter defined)
and July 15, 2004, is entered into between Slavie Federal Savings Bank, a
federal savings and loan association organized under the laws of the United
States of America and located in the state of Maryland, having its principal
place of business at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxx, XX 00000-0000 (the
“Borrower”)
and
the Federal Home Loan Bank of Atlanta, a corporation organized and existing
under the laws of the United States, having its principal office at 0000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000 (the “Bank”).
WHEREAS,
the Borrower 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 Borrower 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, as now and hereafter in effect (collectively, the
“Regulations”);
WHEREAS,
the Bank requires that extensions of credit by the Bank be secured pursuant
to
this Agreement, and the Borrower and any Obligor (as hereinafter defined) joined
to this Agreement from time to time, as provided herein, agree to provide the
security the Bank requests in accordance with this Agreement; and
WHEREAS,
the Borrower and each other Obligor acknowledges, understands and agrees that
(a) the Bank shall not have any obligation or commitment (under this Agreement,
the Credit and Collateral Policy, or otherwise) to approve any application
by
the Borrower for Advances, Credit Products, Derivative Transactions, or Other
Products, (b) the terms and conditions of any Advances, Credit Products,
Derivative Transactions, or Other Products which the Bank may make or issue,
except for any such terms and conditions specified in a Confirmation, may change
after the date made or
issued,
in connection with a modification to the Bank’s Credit and Collateral Policy as
provided in Section 6.01 of this Agreement, and (c) the Bank, in its sole
discretion, may modify the Credit and Collateral Policy from time to time after
the date of this Agreement and need not obtain any further consent from any
Obligor in order for those modifications to become binding upon each
Obligor.
NOW
THEREFORE, the Borrower and the Bank agree as follows:
1
ARTICLE
I: DEFINITIONS
Section
1.01 Definitions As
used
herein, the following terms shall have the following meanings:
(A)
“Advances”
means
any and all loans or other similar extensions of credit, heretofore, note or
hereafter granted by the Bank to, on behalf of, or for the account of, the
Borrower.
(B)
“Affiliate”
means an
affiliate of the Borrower which (i) has been accepted by the Bank, in its sole
discretion, as a person which may pledge collateral to the Bank and otherwise
support the obligations of the Borrower to the Bank hereunder and (ii) has
entered into a Joinder Agreement. The Affiliate and the Borrower are hereinafter
jointly referred to as the “Obligors.”
(C)
“Application”
means an
application or other writing, in such form or forms as shall be specified by
the
Bank from time to time, by which the Borrower requests an Advance or a Credit
Product, and by which an Obligor requests a Derivative Transaction or an Other
Product.
(D)
“Borrowed
Money” means,
with respect to any Person, without duplication (a) all indebtedness for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) that portion of obligations with respect to capital leases
that is properly classified as a liability on a balance sheet in conformity
with
GAAP, (d) any obligations of such Person issued or assumed as the deferred
purchase price of property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six months
of the incurrence thereof or evidenced by a note or other instrument), (e)
all
Borrowed Money of others secured by (or for which the holder of such Borrowed
Money has an existing right, contingent or otherwise, to be secured by) any
lien
on, or payable out of the proceeds of production from, any property or asset
owned, held or acquired by such Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to
the
credit of that Person, (f) all
guaranty obligations of such Person in respect of any Borrowed Money of any
other person, (g) the maximum amount of all standby letters of credit issued
or
bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(h) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product us any accrued interest thereon, and (i) the Borrowed Money of any
partnership or unincorporated joint venture in which such Person is a general
partner or joint venturer.
(E)
“Borrowing
Documents” means
this Agreement (as amended by any and all Joinder Agreements and any and all
Collateral Pledge Amendments), all Applications, all Confirmations, and all
Supplemental Documentation.
2
(F)
“Capital
Stock”
means
all of the capital stock in the Bank held by the Borrower and all payments
which
have been or hereafter are made on account of subscriptions to and all unpaid
dividends on such capital stock.
(G)
“Collateral”
means
(i) all property, including the products and proceeds thereof, heretofore
assigned, transferred or pledged to the Bank by any Obligor as collateral for
an
Advance, a Credit Product, a Derivative Transaction, an Other Product or any
other Liability prior to the date hereof and (ii) all Capital Stock, Deposits,
Residential First Mortgage Collateral, Commercial Mortgage Collateral,
Multifamily Mortgage Collateral, Government and Agency Securities Collateral,
HELOC and Second Mortgage Collateral, Other Securities Collateral and Other
Collateral, including the products and proceeds thereof, which is now or
hereafter pledged to the Bank pursuant to Section 3.01 hereof or any Joinder
Agreement.
(H)
“Collateral
Maintenance Level”
means
the aggregate dollar amount equal to such percentage(s) as the Bank may specify
from time to time of all Liabilities (1) for Advances and Credit Products;
(2)
with respect to Derivative Transactions for which an Obligor is required to
maintain Collateral; and (3) with respect to any Other Product or under any
Borrowing Documents. The Bank may increase or decrease the Collateral
Maintenance Level at any time as provided in the Credit and Collateral Policy,
and such increase or decrease, as specified by the Bank, will apply to all
existing as well as after-arising Liabilities.
(I) “Collateral
Pledge Amendment”
means a
Collateral Pledge Amendment, substantially in the form attached hereto as
Exhibit B, whereby the Obligors and the Bank have agreed to amend the collateral
pledge provisions of Section 3.01 (ii) hereof as provided therein.
(J) “Commercial
Mortgage Collateral”
means
all notes, bonds, instruments, mortgages, deeds of trust, deeds to secure debt,
security agreements, policies and certificates of insurance, guarantees,
evidences of recordation, applications, underwriting materials, surveys,
appraisals, approvals, permits, notices, opinions of counsel, loan servicing
data and all other electronically stored and written records or materials
relating to fully-disbursed loans held by any Obligor secured by a first lien
on
property improved by one or more commercial buildings, together with all rights
and interests associated with such loans and documents, including all legal,
beneficial, residual and servicing rights, and any endorsements or assignments
thereof.
(K)
“Confirmation”
means a
confirmation, in such form or forms as the Bank may generate from time to time,
by which the Bank agrees to, confirms and provides any additional terms with
respect to any Advance, Credit Product, Derivative Transaction, or Other
Product.
(L)
“Credit
and Collateral Policy”
means
the policies and procedures of the Bank governing the administration of its
credit and other programs, including the requirements for maintenance of
collateral to secure extensions of credit by the Bank, as any such policies
and
procedures may be amended, supplemented, restated or otherwise modified from
time to time hereafter, in accordance with Section 6.01.
(M)
“Credit
Products”
means
any and all commitments or obligations under which the Bank agrees to make
payments on behalf of or for the account of the Borrower, including letters
of
credit, guarantees or other arrangements intended to facilitate transactions
between the Borrower and third parties, or under which the Bank enters into
a
credit or financial accommodation, agreement or other arrangement with the
Borrower, irrespective of whether the Bank’s obligation is contingent or
conditional.
3
(N)
“Deposits” means
all
deposit accounts maintained by any Obligor with the
Bank,
all money, cash, checks, drafts, notices, bills, bills of exchange and bonds
deposited therein or credited thereto, any increases, renewals, extensions,
substitutions and replacements thereof, whether or not deposited in any such
deposit account and all statements, certificates, passbooks and instruments
representing any such deposit account.
(O)
“Derivative
Transactions”
means
all interest rate swaps, all interest rate caps, floors and collars, all
currency exchange transactions, all options and all similar transactions entered
into between the Bank and any Obligor.
(P)
“GAAP”
means
generally accepted accounting principles.
(Q) “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.
(R)
“HELOC
and Second Mortgage Collateral” means
all
notes, bonds, instruments, mortgages, deeds of trust, deeds to secure debt,
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 home equity lines of credit held by any Obligor, loans held by
any
Obligor secured by a junior lien on one-to-four unit single-family dwellings,
or
other similar loans held by any Obligor which have not been fully disbursed,
together with all rights and interests associated with such loans and documents,
including all legal, beneficial, residual and servicing rights, and any
endorsements or assignments thereof.
(S)
“Joinder
Agreement”
means a
joinder agreement, substantially in the form attached hereto as Exhibit A,
whereby an Obligor has agreed in writing to be primarily, jointly and severally
liable for all obligations of all of the Obligors to the Bank under this
Agreement and to pledge Collateral satisfactory to the Bank as security for
such
obligations.
(T)
“Lendable
Collateral Value” means
an
amount equal to such percentage as the Bank shall from time to time, in its
sole
discretion, ascribe in the Credit and Collateral Policy to the market value
or
unpaid principal balances (as the Bank may specify or define) of Qualifying
Collateral.
(U)
“Liabilities”
means
all fees, expenses, obligations, liabilities or indebtedness of any Obligor
to
the Bank, due or to become due, direct or indirect, absolute or contingent,
joint or several, now existing or hereafter at any time created, arising or
incurred, under this Agreement, any Application, Confirmation, Supplemental
Documentation, Advance, Derivative Transaction, Credit Product, Other Product
or
Deposit, including any overdrafts or other charges in connection therewith,
or
under any other obligation for any other service provided by the Bank, including
any obligations under indemnification provisions in any agreement or document
between any Obligor and the Bank, and any renewal, extension or substitution
of
any such obligations, liabilities and indebtedness, including reasonable
attorneys’ fees of the Bank in the collection thereof and the enforcement of
ally remedies with respect to any Collateral therefor.
4
(V)
“Material
Adverse Effect” means
(a)
a material adverse effect upon the business, operations, properties, assets
or
condition (financial or otherwise) of any Obligor or (b) the impairment of
the
ability of any Obligor to perform its obligations under any Borrowing Document
to which it is a party or of Bank to enforce any Borrowing Document or collect
any of the Liabilities. In determining whether any individual event would result
in a Material Adverse Effect, notwithstanding that such event does not of itself
have such effect, a Material Adverse Effect shall be deemed to have occurred
if
the cumulative effect of such event and all other then existing events would
result in a Material Adverse Effect.
(W)
“Multifamily
Mortgage Collateral”
means
all notes, bonds, instruments, mortgages, deeds of trust, deeds to secure debt,
security agreements, policies and certificates of insurance, guarantees,
evidences of recordation, applications, underwriting materials, surveys,
appraisals, approvals, permits, notices, opinions of counsel, loan servicing
data and all other electronically stored and written records or materials
relating to the fully-disbursed loans held by any Obligor secured by a first
lien on property improved by one or more multifamily buildings, together with
all rights and interests associated with such loans and documents, including
all
legal, beneficial, residual and servicing rights, and any endorsements or
assignments thereof.
(X)
“Obligors”
means,
collectively, the Borrower and any Affiliate joined hereunder as provided
herein.
(Y)
“Other
Collateral”
means
such items of personal property, other than Capital Stock, Deposits, Residential
First Mortgage Collateral, Commercial Mortgage Collateral, Multifamily Mortgage
Collateral, Government and Agency Securities Collateral, HELOC and Second
Mortgage Collateral, and Other Securities Collateral, that are offered by any
Obligor as Collateral and are specifically accepted by the Bank as Collateral;
provided, Other Collateral may from time to time include specific items of
Residential First Mortgage Collateral, Commercial Mortgage Collateral,
Multifamily Mortgage Collateral and HELOC and Second Mortgage Collateral which
are identified and offered by an Obligor as Collateral and are specifically
accepted by the Bank as Collateral,
(Z)
“Other
Products”
means
all products and services, other than an Advance, Credit Product or Derivative
Transaction, offered by the Bank to any Obligor from time to time, including
correspondent banking services, mortgage purchase programs and affordable
housing and community investment products and services.
5
(AA) “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.
(BB) “Person”
means an
individual, partnership, corporation, trust, joint venture, joint stock company,
limited liability company, association, unincorporated organization,
governmental authority, or any other entity.
(CC) “Qualifying
Collateral”
means
Collateral, other than Capital Stock and Deposits, which is eligible as
collateral to support the origination of Advances, Credit Products, Derivative
Transactions and Other Products under the terms and conditions of the Act,
the
Regulations and the Credit and Collateral Policy, and which satisfies such
other
requirements for lending as may be established by the Bank.
(DD) “Residential
First Mortgage Collateral” means
all
notes, bonds, instruments, mortgages, deeds of trust, deeds to secure debt,
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 fully-disbursed loans held by any Obligor secured by a first lien
on
one-to-four unit single family dwellings, together with all rights and interests
associated with such loans and documents, including all legal, beneficial,
residual and servicing rights, and any endorsements or assignments
thereof.
(EE) “Supplemental
Documentation”
means
any document, agreement or other writing (other than this Agreement) between
the
Bank and an Obligor relating to Deposits, Advances, Credit Products, Derivative
Transactions and Other Products, including reimbursement agreements, mortgage
purchase documents, wire transfer agreements, automated clearinghouse
agreements, agreements related to the loans held for sale program, International
Swap Dealers Association (“ISDA”)
master
agreements, schedules to ISDA master agreements and credit support annexes
to
ISDA master agreements.
Section
1.02 Other
Definitional Provisions.
References to “Sections,”
“Subsections”
and
“Exhibits”
shall
be to Sections, Subsections and Exhibits, respectively, of this Agreement unless
otherwise specifically provided. Any of the terms defined in Section 1.01 may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference. In this Agreement, “hereof,” “herein,” “hereto,”
“hereunder” and the like mean and refer to this Agreement as a whole and not
merely to the specific section, paragraph or clause in which the respective
word
appears; words importing any gender include the other gender; references to
“writing” include printing, typing, lithography, facsimile, electronic and other
means of reproducing words or other data in a tangible visible form; the words
“including,” “includes” and “include” shall be deemed to be followed by the
words “without limitation”; references to agreements and other contractual
instruments shall be deemed to include subsequent amendments, assignments,
and
other modifications thereto, but only to the extent such amendments, assignments
and other modifications are not prohibited by the terms of this Agreement;
references to Persons include their respective permitted successors and assigns
or, in the case of governmental Persons, Persons succeeding to the relevant
functions of such Persons; and all references to statutes and related
regulations shall include any amendments of same and any successor statutes
and
regulations.
6
ARTICLE
II: ADVANCES AGREEMENT
Section
2.01 Documentation.
Subject
to Section 6.03 hereof, the Borrower may apply to the Bank for Advances, Credit
Products, Derivative Transactions and Other Products in accordance with the
Credit and Collateral Policy. The final terms of any Advance, Credit Product,
Derivative Transaction or Other Product shall be conclusively established by
this Agreement and any Confirmation and Supplemental Documentation related
thereto. Any Obligor shall be estopped from asserting any claim or defense
with
respect to the terms applicable to any Advance, Credit Product, Derivative
Transaction or Other Product unless, within the earlier of (i) any time period
specified in any Confirmation or Supplemental Documentation relating thereto
and
(ii) two (2) business days of receipt of the final documents relating to such
product or service, the Borrower delivers to the Bank a written notice
specifying the disputed term(s) or condition(s) of the Advance, Credit Product,
Derivative Transaction or Other Product. Upon the request of the Bank, or as
provided in the Credit and Collateral Policy, the Borrower shall sign and
deliver to the Bank a promissory note or notes and such other Supplemental
Documentation in such form as the Bank may reasonably require evidencing any
Advance, Credit Product, Derivative Transaction or Other Product. Unless
otherwise agreed by the Bank in writing, all Advances shall be made by crediting
the Borrower’s demand deposit accounts with the Bank. All Borrowing Documents
shall be deemed to have been executed and delivered in Atlanta, Georgia, and
all
payments made under the Borrowing Documents shall be deemed to have been made
in
Atlanta, Georgia. The Bank’s obligation to fund any portion of any approved
Advance, issue any approved letter of credit, guaranty or financial
accommodation relating to a Credit Product or continue under any Derivative
Transaction or Other Product shall be subject to (i) continuing compliance
by
the Obligors with the terms and provisions of this Agreement (ii) there having
occurred no Event of Default hereunder and (iii) the continuing satisfaction
by
the Obligors of the credit and collateral considerations of the Bank and the
eligibility requirements and policies prescribed in the Act, the Regulations
and
the Credit and Collateral Policy.
Section
2.02 Repayment
of Liabilities.
Each
Obligor agrees to repay all Liabilities in accordance with this Agreement,
the
Credit and Collateral Policy and the terms and conditions of the Confirmation
and Supplemental Documentation evidencing such Liabilities. Interest shall
be
paid on all Liabilities at the times specified by the Bank in the Credit and
Collateral Policy and in the Confirmation or Supplemental Documentation and
shall be charged for each day that such Liabilities ate outstanding at the
rate
applicable to such Liabilities. Each Obligor shall pay to the Bank, immediately
and without demand, interest on any past due principal of and interest on any
Liabilities at an interest rate which is the greater of (i) the rate applicable
to such Liabilities plus one percent 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 established
by
the Regulations (the “Default
Rate”).
The
Borrower shall ensure that, on any day on which any payment is due to the Bank
with respect to any Liabilities, whether by maturity, prepayment or
acceleration, the Borrower’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 Borrower hereby authorizes the Bank to debit the
Borrower’s demand deposit account(s) with the Bank for all amounts due and
payable with respect to any Liabilities and for all other amounts due and
payable hereunder. In the event that the available balance in the Borrower’s
demand deposit account(s) is insufficient to pay such due and payable amounts,
the Bank may, without notice to or request from any Obligor, apply any other
deposits, credits, or monies of any Obligor then in the possession of the Bank
to the payment of amounts due and payable. Each Obligor agrees that, in the
event that any such debit results in any of the Borrower’s accounts with the
Bank being overdrawn, the Obligor shall immediately reimburse the Bank for
such
overdraft amount and pay overdraft charges thereon at the Default Rate, in
addition to any minimum fees for overdrafts imposed by the Bank from time to
time. All payments with respect to Liabilities shall be applied fast 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.
7
Section
2.03 Payment
of Prepayment Charges.
All
prepayment fees and charges described in the Credit and Collateral Policy,
or in
any Application, Confirmation or Supplemental Documentation, shall be payable
at
the time of any voluntary or involuntary payment of all or part of the principal
of any Liabilities prior to the originally scheduled maturity thereof, including
without limitation payments that are made as a part of a liquidation of any
Obligor or that become due by operation of law or as a result of an acceleration
pursuant to Section 5.02 hereof, whether such payment is made by any Obligor,
by
a conservator, receiver, liquidator or trustee of or for any Obligor, or by
any
successor to or any assignee of any Obligor.
Section
2.04 Compliance
with the Credit and Collateral Policy.
Each
Obligor hereby agrees to comply at all times with the Credit and Collateral
Policy.
ARTICLE
III: SECURITY AGREEMENT
Section
3.01 Creation
of Security Interest.
As
security for all Liabilities, the Borrower hereby assigns, transfers, and
pledges to the Bank, and grants to the Bank a security interest in, (i) all
property heretofore assigned, transferred or pledged by the Borrower to the
Bank
as collateral securing Liabilities and other obligations of the Borrower prior
to the date hereof, (ii) except as otherwise provided in a Collateral Pledge
Amendment, all of the Capital Stock, Deposits, Residential First Mortgage
Collateral, Commercial Mortgage Collateral, Multifamily Mortgage Collateral
and
HELOC and Second Mortgage Collateral now or hereafter owned by the Borrower
and
(iii) all of the Government and Agency Securities Collateral, Other Securities
Collateral, and Other Collateral, specifically identified by the Borrower to
the
Bank as Qualifying Collateral and accepted by the Bank, and all proceeds and
products of any items of the Collateral described in clauses (i) through (iii)
above. In addition, as security for all Liabilities, each Affiliate will assign,
transfer and pledge to the Bank, and grant to the Bank a security interest
in,
the Collateral set forth in its Joinder Agreement.
Section
3.02 Representations
and Warranties Concerning Collateral.
Each
Obligor represents and warrants to the Bank, as of the date hereof, the date
of
each Advance, Credit Product, Derivative Transaction or Other Product, and
the
date of delivery of each collateral report required under Section 3.07(A)
hereof, as follows:
8
(A)
The
Obligor owns and has marketable title to the Collateral pledged by it hereunder
and has the right and authority to grant a security interest in such Collateral
and to subject all of such Collateral to this Agreement;
(B)
The
information given from time to time by the Obligor as to each item of Collateral
pledged by it hereunder is true, accurate and complete in all material
respects;
(C)
The
Obligors own Qualifying Collateral with a Lendable Collateral Value at least
equal to the Collateral Maintenance Level;
(D)
The
lien of the Residential First Mortgage Collateral, Commercial Mortgage
Collateral and Multifamily Mortgage Collateral on the real property securing
such Collateral is a first, prior and perfected lien under applicable
law;
(E)
The
Obligor has not conveyed or otherwise created, and there does not otherwise
exist, any participation interest or other direct, indirect, legal, or
beneficial interest, lien or encumbrance in any Collateral on the part of any
Person other than the Bank and the Obligor, except that the Obligor may sell
or
otherwise dispose of Collateral not necessary to meet the requirements of
Section 3.03(A), and not otherwise reported to the Bank as Qualifying Collateral
for purposes of meeting the requirements of Section 3.03(A), to the extent
such
sale or disposition is made to a person not controlling, controlled by or in
common control with any Obligor;
(F)
No
account debtor or other obligor owing any obligation to the Obligor with respect
to any Qualifying Collateral necessary to meet the collateral maintenance
requirement in Section 3.03(A) hereof, or otherwise reported to the Bank as
Qualifying Collateral for purposes of meeting the requirements of Section
3.03(A), has or shall have any defenses, offsetting claims, or other rights
affecting the right of the Obligor or the Bank to enforce the terms of such
Qualifying Collateral, and no default, (or conditions that, with the passage
of
time of the giving of notice or both, would constitute a default) exist under
any such Qualifying Collateral; and
(G)
No
part of any real property or interest in real property that is included within
the 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 X.X.X. §0000, et seq.; the Hazardous Materials Xxxxxxxxxxxxxx Xxx,
00 X.X.X. §0000 et seq.; the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X.
§0000 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.
9
Section
3.03 Collateral
Maintenance Requirement.
(A)
The
Obligors shall at all times maintain Qualifying Collateral which has a Lendable
Collateral Value that is at least equal to the Collateral Maintenance Level.
In
addition, the Obligors agree to maintain such additional amounts of Collateral
as may be required by the Bank in order to protect the Bank’s security position
with respect to the outstanding Liabilities of the Obligors to the
Bank.
(B)
All
documents and other matters pertaining to the Qualifying Collateral necessary
to
meet the requirements of Section 3.03(A), or otherwise reported to the Bank
as
Qualifying Collateral for purposes of meeting the requirements of Section
3.03(A), must be satisfactory to the Bank and, if not, the Bank may refuse
to
accept such Qualifying Collateral of may assign such Qualifying Collateral
a
Lendable Collateral Value less than the Lendable Collateral Value otherwise
applicable under the Credit and Collateral Policy.
(C)
No
Obligor shall assign, pledge, transfer, create any lien, encumbrance or security
interest in, sell, or otherwise dispose of any Collateral; provided,
however,
(i) an
Obligor may sell or otherwise dispose of Collateral not necessary to meet the
requirements of Section 3.03(A) and not otherwise reported to the Bank as
Qualifying Collateral for purposes of meeting the requirements of Section
3.03(A), so long as no Event of Default has occurred and is continuing and
such
Collateral is sold to a person not controlling, controlled by or in common
control with any Obligor and (ii) upon the written request of the Obligors,
the
Bank will agree to release such Collateral as shall be mutually agreeable to
the
Bank and the Obligors so long as such Collateral to be released is not necessary
to meet the requirements of Section 3.03(A) and not otherwise reported to the
Bank as Qualifying Collateral for purposes of meeting the requirements of
Section 3.03(A).
Section
3.04 Holding
of Collateral.
(A)
Each
Obligor shall hold any Collateral in its possession in such manner as reasonably
identifies the security interest of the Bank and as the Bank shall further
direct.
(B)
Except for Collateral required to be delivered to the Bank or its custodian
as
required hereunder, Collateral shall be held by each Obligor in its possession
(except as otherwise provided herein) in trust for the benefit of, and subject
to the direction, and control of, the Bank and shall be physically safeguarded
by the Obligor in accordance with reasonable commercial procedures. To the
extent that any Obligor enters into any custodial arrangement with respect
to
the Collateral, the Obligor shall notify the Bank in writing of such
arrangement, shall provide the Bank with copies of all agreements evidencing
such arrangement, which shall be satisfactory to the Bank in all respects,
and
shall cause such agreements to provide that the custodian holds the Collateral
for the benefit of the Bank and no other person and that the custodian shall
accept instructions from the Bank with respect to the Collateral. Without
limitation of the foregoing, each Obligor shall take all action necessary or
desirable to protect and preserve the Collateral and the Bank’s interest
therein, including, the collection of payments under all mortgages and under
any
insurance, assuring that all mortgages are serviced in accordance with the
standards of a reasonable and prudent mortgagee and compliance with all
requirements with respect to the Collateral set forth in the Credit and
Collateral Policy.
10
(C)
Any
Collateral which is a security or other investment property shall be delivered
to the Bank, together with such assignments, powers and other documents as
the
Bank shall require in connection with its perfected, first-priority security
interest in such Collateral. 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 perfected,
first-priority 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.
Section
3.05 Delivery
of Collateral.
(A)
Promptly upon the Bank’s written or oral request, or as provided in the Credit
and Collateral Policy, the Obligors 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.
Collateral delivered to the Bank shall be endorsed and assigned, as appropriate,
in such form as reasonably specified by the Bank and together with such
information with respect to such Collateral as the Bank shall
request.
(B)
Each
Obligor 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 and redelivery of Collateral 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).
Section
3.06 Collateral
Reports; Access to Collateral.
(A)
At
the times provided in the Credit and Collateral Policy, and promptly after
any
additional requests by the Bank, each Obligor shall deliver to the Bank such
information, reports, verification reviews and schedules with respect to the
Collateral, the Qualifying Collateral and compliance with this Agreement and
the
Credit and Collateral Policy as provided in the Credit and Collateral Policy,
or
as the Bank shall request, all in form and substance as prescribed by the Bank.
(B)
Each
Obligor shall provide the Bank with such financial reports and other information
relating to the Obligor’s financial condition as the Bank may reasonably
request.
(C)
Each
Obligor shall give the Bank, its agents and representatives access at reasonable
times and locations to the Collateral, and to the Obligor’s books and records of
account relating to such Collateral, for the purpose of the Bank or its agents
and representatives examining, verifying or reconciling the Collateral and
the
Obligor’s reports to the Bank thereon. At the Bank’s request, the Obligors shall
make any or all documents and information pertaining to the Collateral available
to the Bank, its agents and representatives at reasonable times and locations
for their inspection and approval. Each Obligor shall make adequate working
facilities available to the Bank, its agents and representatives for purposes
of
such verifications and reviews. Reasonable fees and charges may be assessed
to
the Obligors by the Bank to cover overhead and other costs relating to such
verifications and reviews, including, any costs and expenses of third parties
engaged by the Bank for such purposes.
11
(D)
If
any Obligor becomes aware or has reason to believe that the Lendable Collateral
Value of the Obligors’ Qualifying Collateral has fallen below the Collateral
Maintenance Level, that a contingency exists which with the lapse of time could
result in the Obligors’ failure to meet the Collateral Maintenance Level, or any
event has occurred which could reasonably be expected to have a material adverse
effect on the operations or financial condition of the Obligor, such Obligor
shall immediately notify the Bank.
(E)
Each
Obligor shall notify the Bank prior to (i) any change in the Obligor’s name,
charter or organizational documents, jurisdiction of organization or form of
organization and (ii) any event that could result in a change in the Obligor’s
“location” as defined in the Uniform Commercial Code.
Section
3.07 Additional
Documentation, Further Assurances.
(A)
Each
Obligor shall, or the Bank may, in lieu of the Obligor, make, execute, record
and deliver such agreements, financing statements, notices, assignments,
listings, powers, and other documents with respect to the Collateral and the
Bank’s first-priority security interest therein and in such form as the Bank may
reasonably require. Each Obligor shall, upon request of the Bank, immediately
take such actions as the Bank shall deem necessary or appropriate to perfect
the
Bank’s first-priority security interest in the Collateral or otherwise to
obtain, preserve, protect, enforce or collect the Collateral or the proceeds
thereof.
(B)
The
Bank may from time to time hereafter require any Obligor to provide
representations, warranties, and undertakings, in addition to those contained
herein, reasonably related to the securing, perfecting, maintaining or enforcing
of the Bank’s rights and interests in the Collateral.
Section
3.08 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 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.
Each Obligor 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.
12
Section
3.09 Bank’s
Rights as to Collateral, Power of Attorney.
At any
time or times, at the expense of the Obligors, the Bank may in its discretion,
before or after the occurrence of an Event of Default as defined in Section
5.01
hereof, in its own name or in the name of its nominee or of any Obligor, 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 applicable law, including,
but not limited to, the following:
(A)
Terminate any consent given hereunder;
(B)
Notify obligors on any Collateral to make payments or tender performance thereon
directly to the Bank;
(C)
Endorse any Collateral in any Obligor’s name;
(D)
Enter
into any extension, compromise, settlement, or other agreement relating to
or
affecting any Collateral;
(E)
Take
any action any Obligor is required to take or which is otherwise reasonably
necessary to file a financing statement, take possession of Collateral, obtain
control of Collateral or otherwise perfect a security interest in any or all
of
the Collateral.
(F)
Take
any action any Obligor is permitted to take in connection with the Collateral,
to the same extent as if the Bank were the originator of the
Collateral;
(G)
Take
control of any funds or other proceeds generated by the Collateral and use
the
same to reduce Liabilities as they become due; and
(H)
Cause
the Collateral to be transferred to its name or the name of its
nominee.
Each
Obligor hereby appoints the Bank as its true and lawful attorney, for and on
behalf of the Obligor 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 Obligor might or could do. Each Obligor 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 Liabilities and all obligations of the Obligors hereunder
regardless of any default by any Obligor, is coupled with an interest, and
is
irrevocable for the period granted.
Section
3.10 Proceeds
of Collateral.
Each
Obligor, as the Bank’s agent, shall collect all payments when due on all
Collateral. If the Bank so requires, each Obligor 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 Liabilities
as they become due; otherwise, the Bank consents to the Obligors’ use and
disposition of all such collections.
13
ARTICLE
IV. ADDITIONAL REPRESENTATIONS,
WARRANTIES
AND COVENANTS
Section
4.01 General
Representations and Warranties by the Obligors.
Each
Obligor hereby represents and warrants that, as of the date hereof, the date
of
each Advance, Credit Product, Derivative Transaction or Other Product, and
the
date of delivery of each collateral report required under Section 3.07(A)
hereof:
(A)
The
Obligor is not, and neither the execution of nor the performance of any of
the
transactions or obligations of the Obligor under this Agreement shall, with
the
passage of time, the giving of notice or otherwise, cause the Obligor to be:
(i)
in violation of its charter or articles of incorporation, by-laws, the Act
or
the Regulations, any other law of 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 Obligor is a party or
by
which it or any of its property is bound;
(B)
The
Obligor has full corporate power and authority and has received all corporate
and governmental authorizations and approvals (including those required under
the Act and the Regulations) as may be required to enter into and perform its
obligations under this Agreement and to obtain any Derivative Transaction or
Other Product, and the Borrower has full corporate power and authority and
has
received all corporate and governmental authorizations and approvals (including
those required under the Act and the Regulations) as may be required to borrow
each Advance and to obtain each Credit Product, Derivative Transaction and
Other
Product;
(C)
The
information given by the Obligor herein or in any Application, Confirmation
or
Supplemental Documentation, or in any oral statement made in connection with
transactions contemplated thereunder, is true, accurate and complete in all
material respects;
(D)
The
name, location (as defined in the Uniform Commercial Code) and corporate form
of
the Obligor is, and for the lesser of its entity existence or the four months
prior to the date of this Agreement has been, the same as set forth in the
opening paragraph of this Agreement or in a Joinder Agreement;
(E)
All
financial statements concerning any Obligor which have been furnished to the
Bank or will hereafter be furnished to the Bank pursuant to this Agreement
or
any Joinder Agreement, have been or will be prepared in accordance with GAAP
consistently applied (except as disclosed therein) and do or will present fairly
the financial condition of the entities covered thereby as at the dates thereof
and the results of their operations for the periods then ended, subject to,
in
the case of unaudited financial statements, the absence of footnotes and
year-end adjustments;
(F)
Since
the date of the most recent audited financial statements of any Obligor referred
to in Section 4.01 (E) above, there have been no events or changes in facts
or
circumstances affecting any Obligor which individually or in the aggregate
have
had or could reasonably be expected to have a Material Adverse
Effect;
14
(G)
(i)
No Obligor is the subject of any review or audit by any governmental of
regulatory investigation concerning the violation or possible violation of
any
law, and (ii) there are no judgments outstanding against any Obligor or
affecting any property of any Obligor, nor is there any action, charge, claim,
demand, suit, proceeding, petition, governmental investigation or arbitration
now pending or, to the best knowledge of Borrower after due inquiry, threatened
against or affecting any Obligor or any property of any Obligor which could
reasonably be expected to result in any Material Adverse Effect;
(H)
None
of the proceeds of any Advance (or other credit extension hereunder) will be
used in connection with any “reportable transaction” within the meaning of
Treasury Regulation Section 1.6011-4(b) or in connection with any “potentially
abusive tax shelter” within the meaning of Section 6112(b) of the Internal
Revenue Code of 1986, as amended; and
(I)
Each
Borrowing Document is and will remain (notwithstanding any amendment thereto
occurring after the date of this Agreement) the legally valid and binding
obligation of each Obligor, enforceable in accordance with its
terms.
Section
4.02 General
Covenants by the Obligors.
Until
the termination of this Agreement and the indefeasible satisfaction in full
of
all of the Liabilities:
(A)
To
the extent that the Borrower relies upon the Lendable Collateral Value of
Qualifying Collateral owned by an Affiliate in obtaining or maintaining any
Advance (or other extension of credit under the Borrowing Documents), the
Borrower will use, directly or indirectly, all of the proceeds of such Advance
(or other extension of credit) for the benefit of such Affiliate;
and
(B)
Each
Obligor will (a) comply with (i) the requirements of all applicable laws, rules,
regulations and orders of any governmental authority (including, laws, rules,
regulations and orders relating to taxes, employer and employee contributions,
securities, employee retirement and welfare benefits, environmental protection
matters, employee health and safety and credit protection, anti--predatory
and
fair lending) as now in effect and which may be imposed in the future in all
jurisdictions in which such Obligor is now doing business or may hereafter
be
doing business and (ii) the obligations, covenants and conditions contained
in
all binding contracts of such Obligor, as applicable, other than those laws,
rules, regulations, orders and provisions of such contracts the noncompliance
with which could not be reasonably expected to have, either individually or
in
the aggregate, a Material Adverse Effect, and (b) maintain or obtain all
licenses, qualifications and permits now held or hereafter required to be held
by such Obligor, for which the loss, suspension, revocation or failure to obtain
or renew, could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. This subsection shall not preclude any
Obligor from contesting any taxes or other payments, if they are being
diligently contested in good faith in a manner which stays enforcement thereof
and if appropriate expense provisions have been recorded in conformity with
GAAP.
15
ARTICLE
V: DEFAULT; REMEDIES
Section
5.01 Events
of Default.
Each of
the following events shall constitute an Event of Default
hereunder:
(A)
Failure of any Obligor to pay when due any interest on or principal of any
Liabilities; or
(B)
Failure of any Obligor to perform any promise or obligation or to satisfy any
condition of liability contained herein, or in any Application, Confirmation
or
Supplemental Documentation, or the occurrence of a default or an event of
default under any Supplemental Documentation; or
(C)
Evidence coming to the attention of the Bank that any representation, statement,
covenant or warranty made or furnished in any manner to the Bank by or on behalf
of any Obligor in connection with this Agreement or any Application,
Confirmation, Supplemental Documentation, Liabilities of Collateral was false
in
any material respect when made or furnished; or
(D)
The
issuance of any tax, levy, seizure, attachment, garnishment, levy of execution,
or other process with respect to the Collateral which has not been stayed;
or
(E)
Any
suspension of payment by any Obligor 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 any Obligor under any security
agreement, indenture, loan agreement, or comparable undertaking; or
(F)
Appointment of a conservator, receiver, or similar official for any Obligor
of
any subsidiary of any Obligor, of any Obligor’s property, entry of a judgment or
decree adjudicating any Obligor or any subsidiary of any Obligor insolvent
or
bankrupt or an assignment by any Obligor or any subsidiary of any Obligor for
benefit of creditors; or
(G)
Sale
by any
Obligor of all or a material part of any Obligor’s assets or the taking of any
other action by any Obligor to liquidate or dissolve; or
(H)
Termination for any reason of the Borrower’s membership in the Bank, failure of
the borrower to comply with the stock purchase requirements of the Bank in
effect from time to time, or the Borrower’s ceasing to be eligible to become a
member of the Bank or any Obligor ceasing to be eligible to pledge Collateral
or
support the obligations of the Borrower hereunder under the Act, the Regulations
or the Credit and Collateral Policy; or
(I)
Merger, consolidation or other combination of any Obligor with an entity that
is
not a member of the Bank if the nonmember entity is the surviving entity;
or
16
(J)
Any
Obligor or any of its respective directors or senior officers is criminally
indicted or convicted of or under a felony or a crime involving fraud against
or
in relation to such Obligor; or
(K)
The
Bank reasonably and in good faith determines that a Material Adverse Effect
has
occurred.
Section
5.02 Acceleration;
Other Remedies. Upon
the
occurrence of an Event of Default, in addition to any other remedies provided
herein, in any Supplemental Documentation or at law or in equity, the Bank
may
at its option, by a notice to the Borrower, declare all or any part(s) of the
Liabilities and accrued interest thereon, including any prepayment fees or
charges which are applicable thereto, to be immediately due and payable, without
presentment, demand, protest, or any further notice. Furthermore, upon the
occurrence of an 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 any Obligor. 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 6.06 hereof at least ten 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, subject to applicable law. Each
Obligor agrees that the Bank may exercise any and all of its rights of setoff
upon the occurrence of an Event of Default. Notwithstanding any other provision
hereof, upon the occurrence of any Event of Default at any time when all or
part
of the Liabilities shall be the subject of a guarantee by a third party for
the
Bank’s benefit, and there shall be other outstanding obligations of any Obligor
to the Bank that are not so guaranteed, but that are secured by the Collateral,
then any sums realized by the Bank from the Collateral, or from any other
collateral pledged or furnished to the Bank by any Obligor under any other
agreement, shall be applied first to the satisfaction of such other
nonguaranteed obligations and then to such Obligor’s guaranteed obligations
hereunder, Each Obligor agrees to pay all the costs and expenses of the Bank
in
the collection of the Liabilities and enforcement of the Bank’s rights and
remedies in case of default, including, reasonable attorneys’ fees. The Bank
shall, to the extent required by law, apply any surplus, after (i) payment
of
the Liabilities, (ii) provision for repayment to the Bank of any amounts to
be
paid or advanced under Other Credit Products, 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 Borrower. Each Obligor shall be liable
to
the Bank for any deficiency remaining.
17
Section
5.03 Certain
Provisions as to Sale of Collateral.
The
Bank may, from time to time, attempt to sell certain Collateral by means of
a
private placement. In so doing, the Bank may restrict the bidders and
prospective purchasers to those who will represent and agree that they are
purchasing for investment only and not for distribution or otherwise impose
restrictions deemed appropriate by the Bank for the purpose of complying with
the requirements of applicable securities laws. The Bank may solicit offers
to
buy such Collateral, for cash or otherwise, from a limited number of investors
deemed by the Bank to be responsible parties who might be interested in
purchasing such Collateral. If the Bank solicits offers from not less than
three
such investors, then the acceptance by the Bank of the highest offer obtained
therefrom (whether or not three offers are obtained) shall be deemed to be
a
commercially reasonable method of disposing of the Collateral.
ARTICLE
VI: MISCELLANEOUS
Section
6.01 Changes
to Credit and Collateral Policy.
The
Bank reserves the right to amend, supplement, restate or otherwise modify the
Credit and Collateral Policy (each, a “Policy
Modification”)
at
any
time, in its sole discretion, without the consent of any Obligor, and each
Obligor hereby (i) acknowledges and agrees that this Agreement shall be deemed
to have been amended by each such Policy Modification, (ii) acknowledges and
agrees that each such Policy Modification shall apply to all Advances, Credit
Products, Derivative Transactions and Other Products (whether outstanding on
the
date of such Policy Modification or issued after the date thereof) and (iii)
agrees to be bound by each and every Policy Modification occurring on, prior
to,
or after the date of this Agreement. Each Policy Modification shall become
effective immediately upon adoption by the Bank; provided,
however,
the
Borrower shall have ten days after such effective date to cure any Event of
Default caused by such Policy Modification. The Bank shall provide notice of
any
Policy Modification by displaying the revised Credit and Collateral Policy
on
the portion of the Bank’s website accessible to members of the Bank.
Notwithstanding the provisions of this section, the Bank shall not amend,
supplement, restate or otherwise modify the terms and conditions of any Advance,
Credit Product, Derivative Transaction or Other Product specified in a
Confirmation, without the consent of the Borrower.
Section
6.02 Assignment.
Each
Obligor hereby gives the Bank the full right, power and authority to pledge
or
assign to any party all or part of the Liabilities, together with all or any
part of the Collateral, as security for consolidated Federal Home Loan Bank
obligations issued pursuant to the provisions of the Act or for any other
purpose authorized by the Act, the Regulations or the Federal Housing Finance
Board. In case of any such pledge or assignment, the Bank shall have no further
responsibility with respect to Collateral transferred to the pledgee or
assignee. The Obligors may not (whether voluntarily, involuntarily, by operation
of law or otherwise) assign or transfer any of their rights or obligations
hereunder or with respect to any Advance, Credit Product, Derivative Transaction
or Other Product without the express prior written consent of the Bank. The
Bank
may at any time, subject to applicable law, sell, assign, grant participations
in, or otherwise transfer to any other person, firm or corporation, including
another Federal Home Loan Bank, all or part of the Liabilities outstanding
hereunder. Each Obligor hereby acknowledges and agrees that any such disposition
shall give rise to a direct obligation of the Obligor to such assignee,
participant or transferee. Each Obligor hereby authorizes the Bank and each
assignee, participant or transferee, in case of default by any Obligor
hereunder, to proceed directly, by right of setoff, banker’s lien, or otherwise,
against any assets of any Obligor which may at the time of such default be
in
the respective hands of the Bank or any such assignee, participant or
transferee. Each Obligor further agrees that the Bank may furnish any
information pertaining to any Obligor which is in the possession of the Bank
to
any prospective assignee, participant or transferee to assist it in evaluating
such assignment, participation or transfer provided that any non-public
information reasonably designated in writing to the Bank by any Obligor as
constituting non-public information shall be furnished to such prospective
assignee, participant or transferee on a confidential basis. Nothing contained
herein shall be deemed to grant to any third party any rights
hereunder.
18
Section
6.03 Discretion
of the Bank to Grant or Deny Advances.
Nothing
contained herein or in any documents describing the Bank’s credit program and
credit policies, including the Credit and Collateral Policy, shall be construed
as an agreement or commitment on the part of the Bank to grant Advances or
enter
into Credit Products, Derivative Transactions or Other Products. No Obligor,
except the Borrower, shall have any right to apply to the Bank for Advances
or
Credit Products. The right and power of the Bank in its discretion to either
grant or deny any Advance, Credit Product, Derivative Transaction or Other
Product requested hereunder is hereby expressly reserved. The determination
by
the Bank of Lendable Collateral Value and the Collateral Maintenance Level
shall
not constitute a determination by the Bank that the Borrower may obtain
Advances, Credit Products, Derivative Transactions or Other Products in amounts
up to such Lendable Collateral Value and Collateral Maintenance
Level.
Section
6.04 Amendment:
Waivers. No
modification, amendment or waiver of any provision of this Agreement (other
than
the provisions of the Credit and Collateral Policy incorporated by reference
herein) 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 any Obligor in any case shall
entitle any Obligor 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 in writing.
Section
6.05 Consent
to jurisdiction.
In any
action or proceeding brought by the Bank or any Obligor in order to enforce
any
right or remedy under this Agreement, the parties hereby consent to, and agree
that they will submit to, the nonexclusive 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.
Section
6.06 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 (other than notice by the Bank of a Policy Modification) shall be
in
writing, 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 Borrower (for all Obligors), as appropriate. All
notices shall be designated to the attention of an office or section of the
Bank
or of the Borrower if the Bank or the Borrower has made a request for the notice
to be so addressed. Any notice by the Bank to the Borrower pursuant to Section
3.06 hereof may be oral and shall be deemed to have been duly given to and
received by the Borrower at the time of the oral communication.
19
Section
6.07 Signatures
of Obligors.
For
purposes of this Agreement, documents shall be deemed signed by each Obligor
when a signature (electronic or manual) of an authorized signatory or an
authorized facsimile thereof appears on the document. The Bank may rely on
any
signature (electronic or manual) 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 each Obligor 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 Borrower
to the Bank for Advances and commitments for Advances and otherwise act for
and
on behalf of the Obligors in accordance with this Agreement. The Obligors shall
promptly notify the Bank of any changes to such certifications, and until
receipt of such notice, the Bank shall be authorized to rely on the
authorizations in such current certifications. Such certifications are
incorporated herein and made a part of this Agreement and shall continue in
effect until expressly revoked or amended in writing by the Obligors,
notwithstanding that subsequent certifications may authorize additional persons
to act for and on behalf of the Obligors.
Section
6.08 Applicable
Law; Severability. In
addition to the terms and conditions specifically set forth herein and in any
Application, Confirmation or Supplemental Documentation, this Agreement and
all
Advances, Credit Products, Derivative Transactions and Other Products 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 any Application, Confirmation
and Supplemental Documentation and to any Advance, Credit Product, Derivative
Transaction or Other Product and shall govern the attachment and perfection
of
any security interest granted hereunder or thereunder. In the event that any
portion of this Agreement, or any Application, Confirmation or Supplemental
Documentation, conflicts with applicable law, such conflict shall not affect
other provisions of this Agreement or such Application, Confirmation or
Supplemental Documentation, which may be given effect without the conflicting
provision, and to this end the provisions of this Agreement and any Application,
Confirmation and Supplemental Documentation are declared to be
severable.
Section
6.09 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the successors
and
permitted assigns of the Obligors and the Bank.
Section
6.10 Entire
Agreement.
This
Agreement, together with any Confirmation or Supplemental Documentation, and
any
amendments or addenda thereto executed by the Bank and the Obligors, embody
the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes all prior agreements between such parties
that relate to such subject matter. If, prior to the date of this Agreement,
the
Borrower and the Bank have entered into an Agreement for Advances and Security
Agreement with Blanket Floating Lien (as amended) or an Advances, Specific
Collateral Pledge and Security Agreement (each, a “Prior
Agreement”),
then
this Agreement shall amend and restate the Prior Agreement in its entirety
as
the date hereof.
20
Section
6.11 Attorneys’
Fees.
Each
Obligor agrees to pay all charges and expenses incurred by Bank (including
reasonable attorneys’ fees and expenses) in connection with the administration
of the Borrowing Documents, any investigation by Bank in respect of any
Borrowing Document, the enforcement, protection or preservation of any right
or
claim of Bank, the termination of this Agreement or any other Borrowing
Document, the termination of any liens of Bank on the Collateral, or the
collection of any amounts due under the Borrowing Documents. If Bank uses
in-house counsel for any of these purposes, each Obligor further agrees that
its
Liabilities under the Borrowing Documents includes reasonable charges for such
work commensurate with the fees that would otherwise be charged by outside
legal
counsel selected by Bank for the work performed.
Section
6.12 Indemnification
of the Bank.
Each
Obligor hereby indemnifies and agrees to defend (with counsel acceptable to
the
Bank) and hold harmless the Bank and each of its directors, officers, agents
and
employees (each, an “Indemnitee’”)
from
and against any liability, loss, cost or expense (including reasonable
attorneys’ fees and expenses for both in-house and outside counsel) incurred in
connection with any claim, damage, suit, arbitration, action, proceeding,
investigation, pre-filing settlement discussion or negotiation, or any other
matter, whenever taking place, and suffered by any one or more of the
Indemnitees (collectively, “Losses”
or
in
which any one or xxxx of the Indemnitees may ever be or become involved (whether
as a party, witness or otherwise), in connection with, or in any way relating
to, any Liability, this Agreement, any Borrowing Document, any Advance, any
Credit Product, any Derivative Transaction, or any Other Product and including
any Loss (a) arising from any Obligor’s failure to observe, perform or discharge
any of its covenants, obligations, agreements or duties under this Agreement
or
any other Borrowing Document, (b) arising from the breach of any of the
representations or warranties contained in any Borrowing Document, (c) relating
to claims of any Person with respect to any Collateral, or (d) arising from
any
Obligor’s failure to comply with any federal, state, or local statute,
regulation, ordinance or other provision of law; provided, an Indemnitee shall
not be indemnified for Losses to the extent they result solely from the gross
negligence or willful misconduct of such Indemnitee. Notwithstanding any
contrary provision in any Borrowing Document, obligations of each Obligor under
this Section 6.12 shall survive the payment in full of the Liabilities and
the
termination of this Agreement.
[Signatures
appear on following page.]
21
IN
WITNESS WHEREOF, Borrower and Bank have caused this Agreement to be signed
in
their names by their duly authorized officers as of the date fast above
mentioned.
SLAVIE
FEDERAL SAVINGS BANK
By:/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President & CEO
By:/s/
Xxxxxxx X. Xxxxxx,
Xx.
Name:
Xxxxxxx X. Xxxxxx, Xx.
Title:
Sr.
Vice-President and Chief Lending Officer
FEDERAL
HOME LOAN BANK OF ATLANTA
By:/s/
Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Senior Vice President
By:/s/
Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
22
FEDERAL
HOME LOAN BANK OF ATLANTA
BORROWER
ACKNOWLEDGEMENT
AND
NOTARIZATION
STATE
OF
MARYLAND
ss: |
County
of
Harford
On
this
1st
day of
July, 2004, before me personally came XXXXXX X. XXXXX and XXXXXXX X. XXXXXX,
XX., to me known, who being by me duly sworn, did depose and state that they
are
the PRESIDENT & CEO and SENIOR VICE PRESIDENT of Slavie Federal Savings Bank
(the “Borrower”);
and
that they are signing their names thereto in my presence by order of the Board
of Directors or other governing body of the Borrower and that said XXXXXX X.
XXXXX and XXXXXXX X. XXXXXX, XX. acknowledge the execution of said instrument
to
be the voluntary act and deed of the Borrower.
/s/
Xxxxxx X.
Xxxxxxxxxxxxx
Notary
Public Signature
Notary
Public in and
for
the
State of Maryland
(NOTARY
PUBLIC’S SEAL)
My
commission expires: 3/1/2007
23