FEDERAL HOME LOAN BANK OF CHICAGO ADVANCES, COLLATERAL PLEDGE, AND SECURITY AGREEMENT
Exhibit
(b)(1)
FEDERAL HOME LOAN BANK OF CHICAGO
ADVANCES, COLLATERAL PLEDGE, AND SECURITY AGREEMENT
ADVANCES, COLLATERAL PLEDGE, AND SECURITY AGREEMENT
THIS AGREEMENT, dated as of April 23, 2008 between Trustmark
Insurance Company
having its principal place of business at 000 Xxxxx Xxxxx, Xxxx Xxxxxx, XX 00000
(“Member”) and the FEDERAL HOME LOAN BANK OF CHICAGO, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000 (“Bank”).
NOW THEREFORE, the Member and Bank agree as follows:
(a) “Additional Collateral” means items of property other than Capital Stock and Eligible
Collateral which are
accepted by the Bank as security, as it deems necessary, to fully secure and protect the
Bank’s security position on outstanding
Advances (as hereinafter defined) or to renew an outstanding Advance in accordance with
Section 10(a)(5) of the Act (12
U.S.C. § 1430(a)(5), as amended) and any Regulations adopted thereunder.
(b) “Advance” or “Advances” means any and all loans or other extensions of credit,
including, without limitation,
deposits under funding agreements, and all Outstanding Commitment(s) (as hereinafter
defined), heretofore, now or hereafter
granted by the Bank to, on behalf of, or for the account of, the Member in accordance
with such terms and conditions as are
applicable to each such transaction under Advance Lending Plans, Special Offerings, and
the Commitment Program as set forth
in the Credit Policy (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 Member and the Bank).
(c) “Agreement” means this Advances, Collateral Pledge, and Security Agreement, together
with any and all
permitted and authorized amendments, modifications, or restatements hereof as may be duly
entered into by the parties hereto
and all documents or other agreements incorporated by reference including, but not
limited to, the Credit Policy.
(d) “Application” means a writing, signed by the Member, and in such form or forms as
shall be specified by the
Bank from time to time, by which the Member requests, and which if executed by the Bank
shall together with this Agreement
evidence the terms of, an Advance or a commitment for an Advance, including, without
limitation, in the case of a deposit
under a funding agreement, a placement schedule or similar addendum or endorsement to the
funding agreement.
(e) “Capital Stock” means all of the capital stock of the Bank and all payments which
have been or hereafter are
made on account of subscriptions to and all unpaid dividends on such capital stock.
(f) “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,
Eligible Collateral, and Additional Collateral, including the proceeds thereof, which is
now or hereafter pledged to the Bank
pursuant to Section 3.01 hereof.
(g) “Collateral Maintenance Level” means a dollar amount of Qualifying Collateral equal to
such percentage(s) as
the Bank may specify from time to time in its Credit Policy of the aggregate dollar amount
of (1) the outstanding amounts of
all Advances; (2) with respect to each outstanding Swap Transaction, the amount for which
the Member is required to maintain
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(Custom Form for Trustmark)
1
Collateral; (3) letters of credit; and (4) any additional obligations and liabilities of the
Member to the Bank. The Bank may increase or decrease the Collateral Maintenance Level at any
time upon prior written or electronic notice to the Bank’s members generally.
(h) “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 telephonic or other
unsigned 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 for an Advance.
(i) “Eligible Collateral” means Capital Stock, First Mortgage Collateral, Government and
Agency Securities
Collateral, Other Eligible Collateral, and Other Securities Collateral.
(j) “Event of Default” means Event of Default as defined in Section 4.01 hereof.
(k) “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, rent assignments, FHA mortgage insurance
or VA loan guarantee certificates, title insurance policies, 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 loans evidenced or secured by the First Mortgage
Documents.
(1) “First Mortgage Documents” means mortgages, deeds of trust and security
instruments (herein “mortgages”) creating a first lien on one-to-four unit residential
dwellings, and all notes, bonds, or other instruments (herein “mortgage notes”) evidencing
fully disbursed whole loans secured by such mortgages and any endorsements or assignments
thereof to the Member.
(m) “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, consolidated obligations of the Federal Home Loan Bank System and
obligations issued or guaranteed by the United States or an agency thereof.
(n) “Indebtedness” means all indebtedness, now or hereafter outstanding, of the
Member to the Bank, including, without limitation, all Advances, interest, and all other
obligations to pay and liabilities of the Member to the Bank.
(o) “Law” shall mean any law (including common law), constitution, statute, treaty,
regulation, rule, ordinance, adjudication, opinion, release, ruling, order, injunction, writ,
decree or award of any Official Body.
(p) “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.
(q) “NAIC” means The National Association of Insurance Commissioners or any
successor thereof.
(r) “Official Body” shall mean any national, federal, state, local or other
government or political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
(s) “Other Eligible Collateral” means items of property other than Capital Stock,
First Mortgage Collateral, Government and Agency Securities Collateral, and Other Securities
Collateral such as deposits at a Federal Home Loan Bank and other real estate related
collateral as defined in Section 10 (a)(4) of the Act (12 U.S.C. 1430 (a)(4), as amended) and
in any Regulations adopted thereunder.
(t) “Other Mortgage Documents” mean mortgages creating an interest in real property other
than a first lien on a one-to-four unit dwelling and all mortgage notes secured by such
mortgages and any endorsements or assignments thereof to the Member.
(u) “Other Securities Collateral” means securities, other than Government and
Agency Securities Collateral, representing a whole interest in fully disbursed whole first
mortgage notes secured by mortgages on improved residential property such as certain classes
of REMICs, mortgage-backed debt obligations, collateralized mortgage obligations, mortgage
pass-through certificates, and mortgage participation certificates.
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(Custom Form for Trustmark)
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(v) “Outstanding Commitment(s)” means, at any point in time, the maximum aggregate
principal amount of each Advance or payment which the Bank may be obligated to make to, on
behalf of, or for the account of, the Member, regardless of whether such obligation is
contingent in whole or in part, including, without limitation, letters of credit, firm
commitments, guarantees, or other arrangements intended to facilitate transactions between
the Member and third parties.
(w) “Qualifying Collateral” means Collateral other than Capital Stock which: (1)
qualifies as security for Advances under the terms and conditions of the Credit Policy, the
Act, and the Regulations and satisfies requirements that may be established by the Bank; (2)
is owned by the Member free and clear of any liens. encumbrances, or other interests other
than the assignment to the Bank hereunder; (3) has not been in default within the most
recent 12-month period, excepting only, in the case of First Mortgage Collateral, payments
which are overdue by not more than 90 days; (4) in the case of First Mortgage Collateral,
relates to residential real property on which is located a one-to-four unit dwelling that is
covered by fire and hazard insurance in an amount at least sufficient to discharge the
mortgage loan in full in case of loss and as to which all real estate taxes are current; (5)
in the case of First Mortgage Collateral and Other Eligible 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; and (6) in the case of Government and
Agency Securities Collateral, Other Eligible Collateral, Other Securities Collateral, and
Additional Collateral, has been pledged by the Member to the Bank pursuant to Section
3.01(a) and specifically accepted by the Bank as Qualifying Collateral.
(x) “RBC Level” means the level of risk based capital as determined from time
to time in accordance with the most restrictive, as of the date of determination, of the
following: (1) state insurance law applicable to the Member; (2) the policies and procedures
of the state insurance department having regulatory authority over the Member, whether or
not having the force or effect of Law; and (3) the policies and procedures of the NAIC,
whether or not having the force or effect of Law. which level, in the case of any of (1),
(2) or (3), requires a response by the Member or the State insurance department having
regulatory authority over the Member. The RBC Levels may include without limitation, the
following levels as currently defined under the policies and procedures of the NAIC: Company
Action Level, Regulatory Action Level, Authorized Control Level and Mandatory Control Level
as said terms are determined by the NAIC.
(y) “RBC Plan” means each comprehensive financial plan, including all amendments
and modifications thereto, filed by the Member with the state insurance department having
regulatory authority over the Member at such time as the Member’s RBC Level is at the
Company Action Level, as such term is currently defined under the policies and procedures of
the NAIC, or RBC Level of similar import, which RBC Plan, without limitation, explains the
facts contributing to the Member’s condition and identifies corrective action to be taken by
the Member.
(z) “RBC Report” means the report filed each year by the Member with the state
insurance department having regulatory authority over the Member, such report to set forth a
detailed calculation of the Member’s RBC Level as of the end of the immediately preceding
calendar year, or in the event no such report is filed, then the report filed each year with
the NAIC by the Member.
(aa) “Risk-Based Capital” means that calculation, as in effect from time to time,
which shall be the most restrictive, as of each date of determination, of the calculations
utilized by the following: (1) state insurance Law applicable to the Member (2) the policies
and procedures of the state insurance department having regulatory authority over the
Member, whether or not having the force or effect of Law; or (3) the policies and procedures
of the NAIC whether or not having the force or effect of Law, which calculation, in the case
of any of (1), (2) or (3), determines, among other matters, the sufficiency of capital of
the Member. Without limiting the generality of the foregoing, as of the date hereof such
calculation in accordance with the policies and procedures of the NAIC takes into account
the risk with respect to an insurance company’s assets, the risk of adverse loss experience
with respect to an insurance company’s policy liabilities, underwriting and credit risks and
all other business risks relevant to such insurance company.
(bb) “REMIC” means a “real estate mortgage investment conduit” within the meaning of
Section 860D of the Internal Revenue Code of 1986, as amended, or any successor provision
thereto.
(cc) “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.
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(Custom Form for Trustmark)
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(a) The Member may apply for Advances and commitments for Advances or to renew an Advance
by completing and submitting an Application to the Bank or by telephonic or other unsigned
communication (“telephonic application”). The Bank may suspend the use of telephonic
applications at any time upon prior written or electronic notice to the Bank’s members
generally. The terms of each Advance or commitment for an Advance shall be conclusively
established by this Agreement and by either (1) the Member’s Application when such Application
is executed by the
Bank without any change; (2) in the case of a telephonic application received, completed,
or modified by the Bank, by a Confirmation of Advance generated by the Bank; or (3) in the
case of an open line of credit Advance, the Member’s Daily Investment Deposit Statement
(“DIDS”).
(b) 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. Failure of the Bank to receive such
conforming Application from the Member shall in no way affect the Member’s obligations with
respect to such Advance. The Member shall be estopped from asserting any claim or defense with
respect to the terms applicable to an Advance or a commitment for an Advance entered into
pursuant to a telephonic application unless, within two (2) business days of receipt of the
Bank’s Confirmation of Advance, or, in the case of an open line of credit Advance, the DIDS,
the Member delivers to the Bank a written notice specifying the disputed term(s) or
condition(s) of the Advance or commitment for an 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 Daily Investment Deposit Account
(“DID Account”) with the Bank.
(a) 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, or, in the case of an
open line of credit Advance, on
demand. Interest shall be paid on each Advance at the times specified by the Bank in the
Credit Policy, Application,
Confirmation of Advance, or, in the case of an open line of credit Advance, the DIDS, and
shall be charged for each day that an
Advance is outstanding at the rate applicable to each such Advance.
(b) The Member shall insure that, on any day on which any payment is due to the Bank with
respect to Advances
or other Indebtedness, the Member’s DID Account 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 DID Account
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 DID Account 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 (and not held by the Bank as bailee for a third
party) to the payment of amounts
due and payable or, in the sole discretion of the Bank, the Bank may fund an Advance to
the Member in the amount of the
insufficiency, which Advance 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 DID Accounts of its members.
(c) 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 (2) as specified in the Credit Policy, but in no event more than any applicable
limit set by the Regulations. A payment
on any Advance shall be deemed past due if such payment is not received by the Bank on or
before the applicable due date
provided in the Application or the Confirmation of Advance, or, in the case of an open
line of credit Advance or a declaration
pursuant to Section 4.01 hereof, on demand.
(d) 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.
250390-3 (Custom Form for Trustmark)
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by crediting a special account of the
Member with the Bank in an amount equal to the Outstanding Commitment(s). The Bank shall have
a first priority perfected security interest in any such special account, and amounts credited
to such special account may not be withdrawn by the Member for so long as there shall be
Outstanding Commitment(s). Amounts credited to such special account shall be utilized by the
Bank for the purpose of satisfying the Bank’s obligations under the Outstanding Commitment(s).
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 successor’s 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 DID Accounts of its members, but in no event more than any
applicable limit set by the Regulations.
(a) In the event that the Bank determines that the creditworthiness of the Member, as
reasonably 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, 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. Member shall make such payments while any amount remains unpaid on the
subject Advances or until notified otherwise by the Bank. No monthly payment shall exceed ten
percent (10%) of the original principal balance of the Advance being amortized. Unless
otherwise specified by the Bank in writing to the Member, such monthly amortizing payments
shall not extend or modify the maturity date or other scheduled payment dates applicable to
the Advance being amortized and interest shall continue to accrue on such Advance as
amortized. Amortization payments required pursuant to this Section 2.04 shall be in addition
to all other payments of principal and interest with respect to any other Advances that are
not subject to amortization pursuant to this Section 2.04.
(b) In the event the Bank renews an Advance which is not fully secured by Eligible
Collateral pursuant to Section 10(a)(5) of the Act (12 U.S.C. 1430(a)(5), as
amended) and any Regulations adopted thereunder, the Member shall reduce the level of such
Advance in accordance with a repayment schedule determined by the Federal Housing Finance
Board as required by this section of the Act.
(a) As security for all Indebtedness, the Member hereby assigns, transfers, and pledges
to the Bank, and grants to
the Bank a security interest in all of the (i) Capital Stock now or hereafter owned by
the Member and all proceeds thereof and
(ii) Government and Agency Securities Collateral now or hereafter owned by the Member,
and all proceeds thereof which is
sufficiently identified in a written communication from the Member to the Bank, which the
Bank has accepted as Qualifying
Collateral, and in which the security interest of the Bank shall be perfected in
conformity with the requirements of Section 3.04
hereof.
(b) The Member also hereby assigns, transfers, and pledges to the Bank as security for
all Indebtedness, and grants
to the Bank a security interest in such First Mortgage Collateral, Other Eligible
Collateral, Other Securities Collateral, and
Additional Collateral now or hereafter owned by the Member, and all proceeds thereof,
which is delivered pursuant to Section
3.03(a) at any time the Member shall not have assigned, transferred, or pledged to the
Bank, under this Agreement,
Government and Agency Securities Collateral which is Qualifying Collateral and which has
a Lendable Collateral Value at
least equal to the Collateral Maintenance Level; (2) at any time the Member does not
qualify under the Bank’s criteria in the
Credit Policy for Member eligibility to secure Advances under this Agreement; (3) if the
Bank determines in good faith that the
value of the Collateral pledged pursuant to Section 3.01(a) may not be adequately
ascertained; or (4) at any time the Bank
deems itself insecure. To assure that the Member provides to the Bank Qualifying
Collateral with a Lendable Collateral Value
at least equal to the Collateral Maintenance Level at all times, the Bank may require
that the Member make, execute, record,
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and deliver to the Bank additional agreements, financing statements, notices, assignments,
listings, powers, and other documents in connection with any such Collateral being pledged
pursuant to this Section 3.01(b) and the Bank’s security interest therein.
(c) The liens and security interests granted to the Bank in the Collateral
constitute and will continue to constitute valid and enforceable first priority security
interests under the Uniform Commercial Code as in effect in each applicable jurisdiction (the
“Uniform Commercial Code”) or other applicable Law, entitled to all the rights, benefits and
priorities provided by the Uniform Commercial Code or such Law. All action has been taken
which is necessary or advisable to establish such valid and enforceable first priority
security interest in favor of the Bank in the Collateral and there is no necessity for any
further action in order to preserve, protect and continue such rights of the Bank. In the case
of certificated securities constituting a portion of the Collateral, possession of any
certificates evidencing such Collateral has been given to the Bank. In the case of that
portion of the Collateral against which a Uniform Commercial Code Financing Statement has been
filed or for which possession has been given to the Bank, all action has been taken which is
necessary or advisable to establish such valid and enforceable first priority, perfected
security interest in favor of the Bank in that Collateral and there is no necessity for any
further action in order to perfect, preserve, protect and continue such rights of the Bank.
All filling fees and other expenses in connection with each of the foregoing actions have been
or will be paid by the Member.
(a) The Member shall at all times maintain as Collateral an amount of Qualifying
Collateral which has a Lendable
Collateral Value that is at least equal to the then current required Collateral
Maintenance Level. The Member shall not assign,
pledge, transfer, create any security interest in, sell, or otherwise dispose of any
Collateral, nor shall the Member foreclose any
First Mortgage Collateral without the express written consent of the Bank if: (1) such
Collateral has been delivered to and is
held by or on behalf of the Bank pursuant to Section 3.03 hereof, or the Bank has
otherwise perfected its security interest in
such Collateral; or (2) at the time of or immediately after such action, the Member is
not or would not be in compliance with
the collateral maintenance requirements of the first sentence of this Section 3.02(a) or
is or would otherwise be in default under
this Agreement.
(b) Subject to Section 3.03 hereof, Collateral shall be held by the Member in trust for
the benefit of, and subject to
the direction and control of, the Bank and will be physically safeguarded by the Member
with at least the same degree of care
as the Member uses in physically safeguarding its other property. Without limitation of
the foregoing, the Member shall take
all action necessary or desirable to protect and preserve the Collateral and the Bank’s
interest therein, including without
limitation the maintaining of insurance on property securing First Mortgage Collateral
(such policies and certificates of
insurance or guaranty relating to such mortgages are herein called “insurance”), the
collection of payments under all mortgages
and under all insurance, and otherwise assuring that all mortgages are serviced in
accordance with the standards of a reasonable
and prudent mortgagee.
(c) If any Collateral that was Qualifying Collateral ceases to be Qualifying Collateral,
the Member shall promptly
notify the Bank in writing of that fact and, if so requested by the Bank, of the reason
that the Collateral, has ceased to be
Qualifying Collateral. If such Collateral was delivered to the Bank pursuant to Section
3.03 hereof, the Member shall request
withdrawal of such Collateral pursuant to Section 3.05 hereof and shall promptly deliver
other Qualifying Collateral having at
least the same Lendable Collateral Value as the Collateral so requested to be withdrawn.
(d) The Bank may review the form and sufficiency of all documents pertaining to the
Collateral. Such documents
must be satisfactory to the Bank and, if not, such Collateral may not be acceptable as
Qualifying Collateral or may have a
Lendable Collateral Value applied thereto that is less than the Lendable Collateral Value
otherwise applicable under the Bank’s
Credit Policy, as the Bank may specify. The Bank may require that the Member make any or
all documents pertaining to the
Collateral available to the Bank for its inspection and approval.
(a) The Member shall deliver to the Bank, or to a custodian designated by the Bank,
such amount of Qualifying Collateral as may be necessary so that the Lendable Collateral Value
of such Qualifying Collateral held by the Bank, or such custodian, meets or exceeds the
Collateral Maintenance Level at all times. Collateral delivered to the Bank shall be endorsed
or assigned, as appropriate, in recordable form by the Member to the Bank, as specified by the
Bank. When requested by the Bank, such endorsements or assignments shall be in blanket form
except that, 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 an item of First Mortgage Collateral or Other Eligible Collateral
is located. With respect to First Mortgage Collateral and mortgage loans which are Other
Eligible Collateral that are delivered hereunder, the Member need only deliver the First
Mortgage Documents and Other Mortgage Documents, unless otherwise directed by the Bank.
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Concurrently with the initial delivery of Collateral, the Member shall deliver to the Bank a
status report and accompanying schedules, all in the form(s) prescribed by the Bank,
specifying and describing the Collateral held by the Bank or its custodian and certifying that
such Collateral is Qualifying Collateral.
(b) With respect to uncertificated securities pledged to the Bank as Government and
Agency Securities Collateral, Other Securities Collateral, or Additional 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 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, consultant,
or appraiser that may be appointed by the Bank hereunder, and the agents and legal counsel of
the Bank and of such custodian). Any sums owed to the Bank under this Section 3.03(c) may be
collected by the Bank, at its option, by debiting the Member’s DID account with the Bank.
(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 or
the proceeds thereof.
(a) The Member shall take all actions such that at all times there shall be delivered to
the Bank, or to a custodian designated by the Bank, all Collateral including such Qualifying
Collateral as may be necessary so that the Lendable Market Value of Qualifying Collateral held
by the Bank, or such custodian, meets or exceeds the Collateral Maintenance Level at all times,
and shall take any and all other actions as may be specified by the Bank to perfect in favor of
the Bank a valid, and enforceable first priority security interest in the Collateral, including
without limitation the filing of financing statements, notice to financial intermediaries and
delivery of assignments and stock powers. Collateral delivered to the Bank shall be endorsed or
assigned in recordable form by the Member to the Bank as directed by the Bank. With respect to
First Mortgage Collateral (if permitted by the Bank’s Credit Policy to be part of Qualifying
Collateral) that is to be delivered hereunder, the Member shall deliver the First Mortgage
Documents with necessary endorsements and assignments relating thereto unless otherwise
directed by the Bank. Concurrently with the initial delivery of Collateral and at such other
times as provided in the Credit Policy or as the Bank may otherwise request, the Member will
deliver to the Bank a status report and accompanying schedules, all in form and substance
satisfactory to the Bank and dated as of the then most recent valuation date, describing the
Collateral held by the Bank or its custodian.
(b) With respect to uncertificated or book entry securities pledged to the Bank as
Government and Agency Securities Collateral or Other Eligible 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 specified by the Bank.
(c) The Member agrees to pay to the Bank (or the attorney, representative, or agent of the
Bank, if the Bank so directs the Member) such reasonable fees and charges as may be assessed by
the Bank to cover the Bank’s overhead and other costs relating to the grant, perfection,
receipt, holding, release and sale or other disposition 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).
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(a) 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, 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, if such actions are subject to
the laws of a state, are lawful under the laws of the State of Illinois including, but
not limited to the following:
(1) Terminate any consent given hereunder;
(2) Notify obligors on any Collateral to make payments thereon directly to the Bank;
(3) Endorse any Collateral in the Member’s name or that has been endorsed by others
to the Member’s name;
(4) Enter into any extension, compromise, settlement, release, renewal, exchange, or
other agreement relating to or affecting any Collateral;
(5) Take any action the Member is required to take or which is otherwise reasonably
necessary to (A) sign and
record a financing statement or otherwise perfect a security interest in any or all of
the Collateral or (B) obtain, preserve,
protect, enforce, or collect the Collateral;
(6) Take control of any funds or other proceeds generated by the Collateral and use the
same to reduce Indebtedness as it becomes due; and
(7) Cause the Collateral to be transferred to its name or the name of its nominee;
provided; however, that the Bank agrees that it shall not take any of the actions described in
clauses (2), (4), (6), or (7) above prior to the occurrence of an Event of Default or an event
which, with the passage of time or the giving of notice, or both, would become an Event of
Default. The Bank shall attempt to give the Member prior notice of its intent to take any of
the actions specified in this Section 3.07(a), but the Bank’s right to take such actions shall
not be limited by the failure to give such notice.
(b) The Member hereby appoints the Bank as its true and lawful attorney, for and on
behalf of the Member and in
its name, place, and stead, to prepare, execute, and record endorsements and assignments
to the Bank of all or any item of
Collateral, giving or granting to the Bank, as such attorney, full power and authority to
do or perform every lawful act
necessary or proper in connection therewith as fully as the Member might or could do. The
Member hereby ratifies and
confirms all that the Bank shall lawfully do or cause to be done by virtue of this
special power of attorney. This special power
of attorney is granted for a period commencing on the date of the incurrence of any
Indebtedness hereunder and continuing
until the discharge of all Indebtedness and all obligations of the Member hereunder
regardless of any default by the Member, is
coupled with an interest, and is irrevocable for the period granted.
250390-3 (Custom Form for Trustmark)
8
be pledged to the Bank as part of the Collateral.
(a) The Member shall furnish to the Bank annually, and at such times as the Bank may
request, an audit report with
respect to the Member’s Collateral, Qualifying Collateral, and Collateral Maintenance
Level prepared by the Member’s external
auditor, in accordance with generally accepted auditing standards, and in form and
substance acceptable to the Bank,
(b) The Member shall furnish to the Bank at such times as the Bank may reasonably
request, or as necessary to
satisfy the requirements of the Bank, a status report with respect to the Member’s
Collateral prepared by the Member in form
and substance acceptable to the Bank, and as of a date within two weeks of the report due
date. The status report shall be a
written report covering such matters regarding the Collateral as the Bank may reasonably
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) The Member shall deliver to the Bank, simultaneously with the Member’s delivery
thereof to the appropriate
federal or state Official Body, a copy of each Form 10-K, 10-Q or other filing with the
Securities and Exchange Commission
with respect to Member and a copy of all financial statements, including without
limitation all actuarial certifications required
in accordance with applicable Law to be filed with any Official Body, such financial
statements to be prepared in accordance
with all of the requirements of applicable Law (without limitation, as to format,
accounting methods and otherwise) and
whether or not adopted by applicable Law the requirements of the NAIC (and in the event
of any conflicting provisions,
including a reconciliation of any difference between the requirements of applicable Law
and the NAIC requirements) or, in the
event that there are no such requirements of applicable Law, then to be prepared in
accordance with generally accepted
accounting principles.
(d) The Member shall provide to the Bank, as soon as available and in any event within
forty-five (45) calendar
days after the end of each fiscal quarter in each fiscal year, a detailed calculation of
Member’s Risk-Based Capital and
consolidated and consolidating financial statements of the Member, consisting of a
balance sheet as of the end of such fiscal
quarter and related statements of income, stockholders’ equity and cash flows for the
fiscal quarter then ended and the fiscal
year through that date, all in reasonable detail and certified (subject to normal
year-end audit adjustments) by the Chief
Executive Officer, President or Chief Financial Officer of the Member as having been
prepared in accordance with generally
accepted accounting principles, consistently applied, and setting forth in comparative
form the respective financial statements
for the corresponding date and period in the previous fiscal year.
(e) The Member shall provide to the Bank, as soon as available in any event within ninety
(90) days after the end of each fiscal year of the Member, consolidated and consolidating
financial statements of the Member consisting of a balance sheet as of the end of such fiscal
year, and related statements of income, stockholders’ equity and cash flows for the fiscal
year then ended, all in reasonable detail and setting forth in comparative form the financial
statements as of the end of and for the preceding fiscal year, and certified by independent
certified public accountants reasonably satisfactory to the Bank. The certificate or report of
accountants shall be free of qualifications (other than any consistency qualification that may
result from a change in the method used to prepare the financial statements as to which such
accountants concur) and shall not indicate the occurrence or existence of any event, condition
or contingency which would materially impair the prospect of payment or performance of any
covenant, agreement or duty of the Member under this Agreement or the related documents
evidencing or in connection with the Indebtedness, together with a letter of such accountants
substantially to the effect that based upon their ordinary and customary examination of the
affairs of the Member, performed in connection with the preparation of such consolidated
financial statements, and in accordance with generally accepted auditing standards, they are
not aware of the existence of any condition or event which constitutes an Event of Default or
event which with the giving of notice or the passing of time or both would constitute an Event
of Default, or, if they are aware of such condition or event, stating the nature thereof.
(f) Concurrently with the financial statements of the Member furnished to the Bank
pursuant to Sections 3.10(c), (d) and (e) hereof, a certificate of the Member signed by the
Chief Executive Officer, President or Chief Financial Officer of the Member, to the effect
that, (i) the representations and warranties of the Member contained in this Agreement and the
related documents evidencing or in connection with the Indebtedness are true on and as of the
date of such certificate with the same
250390-3 (Custom Form for Trustmark)
9
effect as though such representations and warranties had been made on and as of such date
and the Member has performed and complied with all covenants and conditions hereof, and (ii) no
Event of Default or event which with the passing of time or the giving of notice or both would
become an Event of Default exists and is continuing on the date of such certificate.
(g) The Member shall automatically deliver to the Bank, without any request therefor by
the Bank, a copy of each RBC Report of the Member and, if any, each RBC Plan of the Member upon preparation of the
same by the Member.
(h) The Member shall deliver to the Bank within five (5) days of the occurrence thereof, a
copy of any amendment
to the Member’s by-laws, articles or certificate of incorporation or other charter
documents.
(i) The Member shall automatically deliver to the Bank such other information as the
Bank’s Credit Policy may
from time to time require the Member to deliver to the Bank or as the Bank may otherwise
from time to time reasonably
request.
(j) The Member shall provide written notice to the Bank upon the occurrence of an
Event of Default,
(k) All Collateral and the satisfaction of the Collateral Maintenance Level, 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 Members normal business
hours or upon reasonable notice at such other times as the Bank may reasonably request. The
Member shall provide access to, and shall make adequate working facilities available to, the
representatives or agents of the Bank for purposes of such audits and verification. 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.
(l) 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 securities or other item of
Collateral by five percent (5%) or more, whether by prepayment, foreclosure sale, insurance,
guaranty payment, or otherwise.
(m) The Member shall give the Bank access at all reasonable times to Collateral in
the Member’s possession and to the Member’s books and records of account relating to such
Collateral, for the purpose of the Bank’s examining, verifying, or reconciling the Collateral
and the Member’s reports to the Bank thereon.
(n) 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.
(o) Notwithstanding anything to the contrary, the Member shall be solely
responsible for the accuracy and adequacy of all information and data in each audit or status
report (or other writing specifying and describing any Collateral) submitted to the Bank,
regardless of the form in which submitted. To enable the Bank to regenerate any files or data
previously furnished to the Bank with respect to any Collateral or any information contained
in any audit or status report, the Member shall at all times maintain complete and accurate
records and materials supporting and/or relating to any audit or status report and shall make
the same available, on request, to the Bank The parties hereto agree that the maintenance and
retention of such supporting records and materials shall be the sole responsibility of the
Member and that the Bank shall not be liable for any loss of such data.
(p) The Bank shall have no duty to make any independent examination of or
calculation with respect to the information submitted in an audit or status report (or in any
written schedule that may be submitted by the Member) and without limiting the generality of
the foregoing, the Bank makes no representation or warranty as to the validity, accuracy, or
completeness of any information contained in any written records of the Bank concerning, or of
any response to, such audit or status report.
(a) The Member owns and has marketable title to the Collateral and has the right and
authority to grant a security
interest in the Collateral and to subject all of the Collateral to this Agreement;
(b) The information given from time to time by the Member as to each item of Collateral
is true, accurate, and
complete in all material respects;
250390-3 (Custom Form for Trustmark)
10
(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 Eligible Collateral on the real
property securing the same is a perfected lien under applicable state law and the lien of the
First Mortgage Collateral is a first lien;
(e) Except as may be approved in writing by the Bank, the Member has not conveyed or
otherwise created, and there does not otherwise exist, any participation interest or other
direct, indirect, legal, or beneficial interest in any Collateral on the part of anyone other
than the Bank and the Member;
(f) All signatories to any and all writings that constitute any Collateral are
and will be bound as they appear to be by their signatures and have the requisite
authority and capacity (corporate or other) to execute such writings;
(g) Except as may be approved in writing by the Bank, no account debtor or other obligor
owing any obligation to the Member with respect to any item of First Mortgage Collateral or
Other Eligible Collateral has or will have any defenses, offsetting claims, or other rights
affecting the right of the Member or the Bank to enforce the writings constituting any 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 or will exist under any such writings; and
(h) No part of any real property or interest in real property that is the subject of
mortgages included in 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. 9601,
et seq,; the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq.; the
Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq.: and in the regulations adopted and publications promulgated pursuant
to said laws) the presence of which
could subject the Bank to any liability under applicable state or Federal law or local
ordinance either at any time that such
property is pledged to the Bank or upon the enforcement by the Bank of its security
interest therein. The Member hereby agrees
to indemnify and hold the Bank harmless against all costs, claims, expenses, damages, and
liabilities resulting in any way from
the presence or effects of any such toxic or hazardous substances or materials in, on, or
under any real property or interest in
real property that is subject to or included in the Collateral.
(a) Failure of the Member to pay when due the principal of any Advance: or the
failure to pay when due any interest on any Advance and such failure shall continue
for three (3) calendar days:
(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;
(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, any specification or description of Qualifying Collateral or any
report or certification concerning the status, or principal balance of any item of Collateral
was false in any material respect when made or furnished;
(d) Failure of the Member to grant and deliver to the Bank a valid and enforceable first
priority, perfected security
250390-3 (Custom Form for Trustmark)
11
interest in Qualifying Collateral which has a Lendable Market Value that is at least equal
to the then current Collateral
Maintenance Level, free of any encumbrances or claims as required herein, or to maintain the
same after the creation of such
security interest;
(e) The issuance of any tax, levy, seizure, attachment, garnishment, levy of execution, or
other process with respect
to the Collateral;
(f) Any suspension of payment by the Member to any creditor of sums due or the occurrence
of any event which
results (or which with the giving of notice or passage of time, or both, will result) in
another creditor having the right to
accelerate the maturity of any indebtedness of the Member in excess of $1,000,000 in the
aggregate under any security
agreement, indenture, loan agreement, or comparable undertaking;
(g) Any Official Body takes any action with respect to the Member which (i) is in
anticipation of a takeover or assumption of control of the Member by any Official Body; (ii) is
a takeover or assumption of control of the Member by any Official Body; or (iii) results in the
supervision of the Member’s operations pursuant to an order of any court or Official Body;
(h) Application for or 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,
decree, or administrative decision 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 the appointment of a trustee, conservator, receiver, liquidator,
custodian, or similar official for any parent company (direct or indirect) of the Member or
other entity or person owning fifty percent (50%) or more of the outstanding capital stock of
the Member, or the filing of a petition or application by any person for the appointment of any
such official for any such parent of the Member or the transfer of any of the Member’s assets
or liabilities (whether by purchase and assumption by any third party or merger or otherwise)
in connection with or as a result of any event heretofore described in this Section 4.01(g);
(i) 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;
(j) 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;
(k) Merger, consolidation, or other combination of the Member with an entity which
is not a member of the Bank if the nonmember entity is the surviving entity;
(l) The Bank reasonably and in good faith determines that a material adverse change
has occurred in the financial condition of the Member from that disclosed at the time of the
making of any Advance or from the condition of the Member as theretofore most recently
disclosed to the Bank;
(m) The Member’s rating by one of the following rating agencies is less than the rating set
forth below:
| A.M. Best Co.: | B | ||
| Fitch: | BBB |
A ratings downgrade within the ratings grade, but below the ratings level stated, will be
considered an Event of Default.
(n) In accordance with any of (i) state insurance Law applicable to the Member, (ii)
the policies and procedures of the state insurance department having regulator authority over
the Member, whether or not having the force and effect of Law or (iii) the policies or
procedures of the NAIC, whether or not having the force or effect of Law, with respect to the
Member’s RBC Level with a Regulatory Action Level event, an Authorized Control Level event, or
a Mandatory Control Level event (as such events are currently defined in the policies and
procedures of the NAIC), or an event of similar import occurs; or
(o) The Member’s policyholder surplus, as reported on its most recent
financial statement filed with an Official Body or the NAIC decreases by ten
percent (10%) or more for two consecutive years and in each of such years the
Member also reports in such financial statements a net loss from operations.
(a) Upon the occurrence of any Event of Default, the Bank shall have all
of the rights and remedies provided by
250390-3 (Custom Form for Trustmark)
12
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 Illinois.
(b) Without limiting or affecting other rights of the Bank pertaining to the Collateral
contained herein, the Bank, at
its option and in its discretion, may take or cause its agent to take immediate
possession of any of the Collateral or any part
thereof wherever the same may be found by suit or otherwise. 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 a
decrease in the market value of the Collateral during the period held. The Bank shall
have the right to purchase all or part of the
Collateral at such sale. If the Collateral includes insurance or securities which will be
redeemed by the issuer upon surrender,
or any accounts or deposits in the possession of the Bank, the Bank may realize upon such
Collateral without notice to the
Member.
(c) Member waives any demand, advertisement, or notice of the time or place of intended
disposition of any of the
Collateral unless required by applicable law. When required, such notification shall be
deemed reasonably and properly given
if given as provided by applicable law or in accordance with Section 5.05 hereof at least
5 days before any such disposition.
The Member agrees that the Bank may exercise its rights of setoff upon the occurrence of
an Event of Default in the same
manner as if the Advances were unsecured.
(d) Notwithstanding any other provision hereof, upon the occurrence of any Event of
Default at any time when all
or part of the obligations of the Member to the Bank hereunder shall be the subject of
any guarantee by a third party for the
Bank’s benefit and there shall be other outstanding obligations of the Member 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 if
furnished to the Bank by the Member under any other agreement, shall be applied first to
the satisfaction of such other
nonguaranteed obligations and then to the Member’s guaranteed obligations hereunder.
(e) The Member agrees to pay all the costs and expenses of the Bank in the collection of
the Indebtedness and
enforcement and preservation of the Bank’s rights and remedies in case of default, including,
without limitation, reasonable attorneys fees; provided that the Member shall not be obligated
to pay any attorneys fees associated with any appeal by the Bank that is ultimately
unsuccessful. Any sums owed to the Bank under this Section 4.02(e) may be collected by the
Bank, at its option, by debiting the Member’s DID Account with the Bank.
250390-3 (Custom Form for Trustmark)
13
the Bank and the Member.
(a) The Member is not, and neither the execution of nor the performance of any of the
transactions or obligations
of the Member under this Agreement shall, with the passage of time, the giving of notice
or otherwise, cause the Member to be:
(1) in violation of its charter or articles of incorporation, bylaws, the Act or the
Regulations, any other law or administrative regulation, any court decree, or any order of a
regulatory authority; or (2) 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, request for an Advance, commitment for an
Advance, a pledge, specification, or delivery of Collateral, is true, accurate, and complete
in all material respects;
(d) The Member, unless otherwise exempted, is in compliance with any Regulations
pertaining to community investment or service adopted pursuant to Section 10(g) of the Act (12
U.S.C. 1430(g), as amended);
(e) All long-term Advances shall be utilized solely for the purpose of providing funds
for residential housing finance. “Long-term” is defined as five years or greater in term or as
defined by the Federal Housing Finance Board;
(f) The Member, at the time of execution of this Agreement and thereafter at each time as
requested by the Bank in the Bank’s sole discretion, shall deliver to the Bank, in form and
substance satisfactory to the Bank, an opinion of legal counsel of the Member, such legal
counsel to be satisfactory to the Bank and such opinion to be as to those matters which the
Bank may request, in its sole discretion, including without limitation: (i) confirming the
power and authority of the Member to enter into this Agreement and the other related loan
documents with respect to the Indebtedness and to consummate the transactions contemplated
hereby and thereby; (ii) confirming the due authorization of this Agreement and the other
documents in connection with the Indebtedness to consummate the transactions contemplated
thereby; (iii) confirming there is no litigation pending against the Member (or describing
same); (iv) confirming that there are no regulatory orders which have been issued by any
Official Body that would prohibit the Member from entering into this Agreement and the other
related loan documents in respect of the Indebtedness and consummating the transitions
contemplated hereby and thereby; and (v) confirming the valid and enforceable first priority
security interest of the Bank in the Collateral, and if, subject to a filed Uniform Commercial
Code Financing Statement or possession by the Bank, a perfected security interest of the Bank
in the Collateral;
(g) The Member shall at all times comply with all applicable Law, including, without
limitation, all Laws relating to: (i) the purchase or holding by the Member of those
investments permitted by Law; (ii) transactions with affiliates; (iii) payment of dividends;
and (iv) contributions to the Member’s surplus;
(h) The Member shall notify the Bank of any change in law generally applicable to
insurance companies the result
of which may have a material adverse impact upon the Member or the Bank; and
(i) The Member represents that all reinsurance contracts which are an asset of the Member
(collectively the
“Reinsurance Contracts”) are valid and enforceable, have been entered into with licensed
insurance companies or authorized
reinsurers as identified by an Official Body which has regulatory authority over the
Member and contain all the terms and
conditions required in order to provide the Member the reserve credit, in accordance with
the state insurance Law applicable to
the Member, on its statutory financial statement, as required by and prepared in
accordance with state insurance Law applicable
to the Member.
250390-3 (Custom Form for Trustmark)
14
Section 5.04 JURISDCTION; 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 Illinois or, if such action or proceeding may not be brought in
Federal court, the jurisdiction of the courts of the State of Illinois located in the City of
Chicago. The Member agrees that if any action or proceeding is brought by the Member seeking to
obtain any legal or equitable relief against the Bank under or arising out of this Agreement or
any transaction contemplated hereby and such relief is not granted by the final decision, after
any and all appeals, of a court of competent jurisdiction, the Member will pay all attorneys’
fees and other costs incurred by the Bank in connection therewith. The Member agrees to
reimburse the Bank for all costs and expenses (including reasonable fees and out-of-pocket
expenses of counsel for the Bank) incurred by the Bank in connection with the enforcement or
preservation of the Bank’s rights under this Agreement including, but not limited to, its
rights in respect of any Collateral and the audit or possession thereof; provided that the
Member shall not be obligated to reimburse the Bank for any such fees and expenses associated
with any appeal by the Bank that is ultimately unsuccessful. Any sums owed to the Bank under
this Section 5.04 may be collected by the Bank, at its option, by debiting the Member’s DID
Account with the Bank.
Section 5.07 APPLICABLE LAW; SEVERABILITY In addition to the terms and conditions specifically set
forth herein and in any Application or Confirmation of an Advance between the Bank and the Member,
this Agreement and all Advances and all commitments for Advances shall be governed by the statutory
and common law of the United States and, to the extent Federal law incorporates or defers to state
law, the laws (exclusive of the choice of law provisions) of the State of Illinois, Notwithstanding
the foregoing, the Uniform Commercial Code as in effect in the State of Illinois shall be deemed
applicable to this Agreement and to any Advance hereunder and shall govern the attachment and
perfection of any security interest granted
250390-3 (Custom Form for Trustmark)
15
hereunder to the extent that the Act, Regulations, or other statutory law of the United
States is not applicable. 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.
MEMBER
Trustmark Insurance Company
|
||
| (Typed Name of Member) |
By:
|
|
By: |  |
|||||
Title:
|
Chief Executive Officer | Title: | Secretary | |||||
MEMBER ACKNOWLEDGMENT
STATE OF Illinois
|
) | |||||
| ) | ss | |||||
COUNTY OF Lake
|
) | |||||
On
this 23 day of April,
,
before me personally came Xxxxx XxXxxxxxx & Xxxx Xxx Xxxxxx
to me known, who, being by me duly sworn, did depose and state that [s]he resides at
that [s] he is the CEO / Secretary of the corporation described in and which executed the above instrument; that
[s] he knows the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of said corporation; and
that [s]he signed his/her name thereto by order of the Board of Directors of said corporation.
 |
||
| Notary Public |
250390-3 (Custom Form for Trustmark)
16
FEDERAL HOME LOAN BANK OF CHICAGO
By: |
 |
By: |  |
|||||
Title:
|
Xxxxxxx X. Xxxxxx Executive Vice President |
Title: | Xxxxxx X. Xxxxxxxxxxx Vice President |
|||||
FEDERAL HOME LOAN BANK OF CHICAGO ACKNOWLEDGEMENT
STATE OF ILLINOIS
|
) | |||||
| ) | ss | |||||
COUNTY OF XXXX
|
) |
On this
15th day of May, 2008, before me personally came Xxxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxxxxxxx to me known, who, being by me duly sworn did depose and state that
[s]he resides at
that [s]he is the EVP & VP of the Federal Home
Loan Bank of Chicago the corporation described in and which executed the above instrument: that [s] he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that [s]he signed his/her name
thereto by order of the Board of Directors of said corporation.
 |
||
 |
250390-3 (Custom Form for Trustmark)
17