EXHIBIT 10.2
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement ("Agreement"), dated as of April 19,
2006, by and between EBANK MORTGAGE, LLC, a Georgia limited liability company
(the "Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association ("Bank");
WITNESSETH,
WHEREAS, the Borrower and the Bank have made and entered into a Warehousing
Credit Agreement, dated as of April 19, 2006, (hereinafter, as the same may be
amended, modified or supplemented from time to time, called the "Credit
Agreement"); and
WHEREAS, under the terms of the Credit Agreement it is a condition to the
obligation of the Bank to make Advances that the Borrower execute and deliver
this Pledge and Security Agreement to the Bank;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and in order to induce the Bank to become a party to,
and to extend credit under, the Credit Agreement, the parties hereto agree as
follows:
Section 1. DEFINITIONS
Each undefined capitalized term used herein shall have the meaning ascribed
to it in the Credit Agreement, including Exhibit A. As used herein, the
following terms shall have the following respective meanings:
"Agreement to Pledge": an Agreement to Pledge substantially in the form of
Attachment 1 hereto, which shall have a Collateral Identification Letter
(Attachment 2) and Mortgage Loan Detail Listing (Attachment 3) attached.
"Bailee Letter": a letter substantially in the form of Attachment 4 hereto.
"Business Day": a day on which national banks are open for business in
Minneapolis, Minnesota.
"Closing Agent": with respect to any Loan, the title company or other
person performing the functions of a title company in connection with the
closing of such Loan.
"Collateral": as defined in Section 2.
"Collateral Identification Letter": a Collateral Identification Letter
substantially in the form of Attachment 2 hereto.
"Collateral Transmittal Letter": a Collateral Transmittal Letter
substantially in the form of Attachment 5 hereto
"Collections": as defined in Section 2(i).
"Electronic Tracking Agreement" means the Electronic Tracking Agreement, in
form and substance acceptable to the Bank, among the Borrower, the Bank, MERS
and MERSCORP, as amended from time to time.
"Good Funds Wire Account": account number 104756215562 maintained at the
Bank.
"Mortgage Loan Detail Listing": a loan detail listing substantially in the
form of Attachment 3 hereto.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MERS Agreements" means the Electronic Tracking Agreement and any other
agreement, document or instrument setting forth the terms of or otherwise
affecting the MERS System and the Borrower's membership in MERSCORP.
"MERSCORP" means MERSCORP. Inc.
"MERS System" means MERSCORP's mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual in the form attached to the
Electronic Tracking Agreement, as amended from time to time.
"Obligor": a person or other entity who now or hereafter is or becomes
liable to the Borrower with respect to any of the Collateral.
"Pledged Loans": any and all indebtedness or obligations evidenced by
promissory notes, debentures, bonds and other instruments and interests therein,
now or hereafter owned, made, purchased or otherwise acquired by the Borrower
and which are now or hereafter at any time, pledged, hypothecated, assigned,
transferred or conveyed, and a security interest therein granted, to the Bank,
as evidenced by the delivery to the Bank, consistent with the terms of Section 4
hereof, or which otherwise come into the possession, custody or control of the
Bank or in respect of which an Advance has been made under the Credit
Agreement..
"Pledged Mortgage-backed Security": any mortgage-backed securities which
are from time to time created in whole or in part on the basis of any Pledged
Loan prior to payment of the purchase price for such Pledged Loan under the
applicable Purchase Commitment.
"Secured Obligations": all obligations, liabilities or indebtedness of the
Borrower 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 Pledge and Security Agreement, the Credit
Agreement, including, but not limited to, the obligations, liabilities and
indebtedness of the Borrower to the Bank under the Warehousing Note, and any
renewal or extension of any such obligations, liabilities and indebtedness, and
all costs of collecting such obligations, liabilities and indebtedness,
including reasonable attorneys' fees of the Bank in the collection thereof and
the enforcement of any Collateral therefor.
"Shipping Instructions": shipping instructions for Mortgage Loans
substantially in the form of Attachment 6 hereto.
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"Trust Receipt": a trust receipt in the form of Attachment 7 hereto.
Section 2. PLEDGE
As collateral security for the due and punctual payment of the Secured
Obligations, and to secure performance of each obligation and the observance of
each term and condition to be performed or observed by the Borrower under the
Credit Agreement, this Agreement and the other Loan Documents, the Borrower does
hereby pledge, hypothecate, assign, transfer and convey to the Bank and assigns
and grants to the Bank, a security interest in and to the following described
property (the "Collateral"):
(a) all right, title and interest of the Borrower in and to the
Pledged Loans and all promissory notes, participation agreements, participation
certificates, or other instruments or agreements which evidence any of the
Pledged Loans;
(b) all right, title and interest of the Borrower in and to all notes,
real estate mortgages, deeds of trust, security agreements, chattel mortgages,
assignments of rent and other security instruments whether now or hereafter
owned, acquired or held by the Borrower which secure (or constitute collateral
for any note, instrument or agreement securing) any of the promissory notes or
other instruments or agreements which evidence any of the Pledged Loans;
(c) all right, title and interest of the Borrower in and to all
financing statements perfecting the security interest of the Borrower in any of
the foregoing;
(d) all right, title and interest of the Borrower in and to all
guaranties and other instruments by which the persons or entities executing the
same guarantee, among other things, the payment of performance of the Pledged
Loans;
(e) all right, title and interest of the Borrower in and to all title
insurance policies, title insurance binders, commitments or reports insuring or
relating to the foregoing;
(f) all right, title and interest of the Borrower in and to all
surveys, bonds, hazard and liability insurance policies, participation
agreements and any other agreement, instrument or document pertaining to,
affecting, obtained by the Borrower in connection with, or arising out of, the
Pledged Loans;
(g) all right, title and interest of the Borrower in and to all
Purchase Commitments and other commitments and other agreements to purchase any
Pledged Loans, all proceeds resulting from the sale of Pledged Loans, all
accounts maintained with broker-dealers by the Borrower for the purpose of
carrying out transactions under Purchase Commitments and all futures and futures
options transactions involving Pledged Loans;
(h) all right, title and interest of the Borrower in and to servicing
rights with respect to any Pledged Loans and all rights to the payment or
collection of monies under such servicing rights on account of servicing,
administration or collection activities;
(i) all right, title and interest of the Borrower in and to Pledged
Mortgage-backed Securities;
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(j) all right, title and interest of the Borrower in and to all
collections on, and proceeds of or from, any and all of the foregoing
(hereinafter collectively called "Collections");
(k) all right, title and interest of the Borrower in and to any other
asset of the Borrower which has been or hereafter at any time is, delivered to
the Bank hereunder;
(l) all files, surveys, certificates, correspondence, appraisals,
computer programs, tapes, discs, cards, accounting records, and other records,
information, and data of the Borrower relating to the Pledged Loans (including
all information, data, programs, tapes, discs and cards necessary to administer
and service such Pledged Loans);
(m) all balances, credits and deposits of the Borrower maintained in
the Funding and Settlement Account, the Good Funds Wire Account and any
operating account or other banking account of the Borrower maintained with the
Bank;
(n) any and all balances, credits, deposits, accounts or moneys of, or
in the name of, the Borrower representing or evidencing the foregoing or any
proceeds thereof; and
(o) any and all proceeds of any of the foregoing.
Section 3. REPORTS CONCERNING EXISTING COLLATERAL AND HEREAFTER ACQUIRED
COLLATERAL
From time to time hereafter as requested by the Bank, the Borrower
will promptly give a written report to the Bank describing and listing each
document, instrument or other paper which evidences, secures, guarantees,
insures or pertains to any item of the Collateral whether now or hereafter
owned, acquired or held by the Borrower that the Borrower has not theretofore
delivered to the Bank. Such written report shall contain sufficient information
to enable the Bank to identify each such document, instrument or other paper.
The Borrower (a) upon the request of the Bank, shall promptly provide additional
information concerning, or a more complete description of, each such document,
instrument or other paper and (b) at the request of the Bank, shall promptly
deliver the same to the Bank.
Section 4. DELIVERY OF COLLATERAL DOCUMENTS
4.01 Delivery of Loans.
A Loan shall be deemed to have been delivered and pledged to the Bank under
this Pledge and Security Agreement when:
(i) The Bank has received, with respect to such Loan, (A) an
Agreement to Pledge, duly completed and executed by the Borrower, (B) a
Collateral Identification Letter duly completed and executed by the
Borrower, (C) a Loan Detail Listing, duly completed, and (D) unless
previously supplied to the Bank, a copy of the Purchase Commitment under
which such Loan is to be delivered; and
(ii) either:
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(A) a wire transfer of funds from the Good Funds Wire
Account or otherwise has been initiated for the purpose of
funding the origination or purchase of such Loan;
(B) a draft drawn upon the Bank for the purpose of funding
the origination or purchase of such Loan has been received by the
Bank and has cleared the Bank's payment process;
(C) a draft drawn upon the Bank for the purpose of funding
the origination or purchase of such Loan has been accepted by the
Bank, or the Bank has otherwise assured payment thereof; or
(D) origination or purchase by the Borrower of the Loan has
otherwise been funded by the Bank or the Borrower has otherwise
identified the Loan as being collateral for the Bank under this
Pledge and Security Agreement.
The documents referred to in clause (i) of the preceding sentence shall be
delivered or transmitted to the Bank by telecopier or electronic data
transmission not later than 1:00 p.m. (Minneapolis time).
4.02 Delivery of Pledged Loan Documentation. the Borrower shall
deliver to the Bank, with respect to each Pledged Loan, the following described
instruments and documents within seven Business Days after the date on which the
applicable Advance made for the purpose of funding such Loan:
(i) The original promissory note, debenture, participation
certificate, participation agreement or other instruments evidencing such
Loan, duly endorsed in blank as follows:
"Pay to the order of, without recourse,
.
----------------------------------------
EBANK MORTGAGE, LLC
By:
-------------------------------
Title: "
----------------------------
(ii) A copy of each original real estate mortgage, deed of trust,
intervening assignment (if any), security agreement, financing statement
and other agreements and instruments securing such Loan, certified by the
Closing Agent to be a true and correct copy of the original as submitted
for recording, together with duly executed assignments in favor of the Bank
in recordable form (provided, however, that the requirements of this
subpart (ii) shall not apply to any Loan (A) which is registered on the
MERS System under the Electronic Tracking Agreement and (B) which has not
been withdrawn from, or re-registered on, the MERS System by the Bank as
set forth in the Electronic Tracking Agreement);
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(iii) if any of the documents described in (i) and (ii) above
were executed on behalf of a party thereto by another person under a power
of attorney, a copy of the original executed power of attorney, certified
by the Closing Agent to be a true and exact copy of the original thereof;
(iv) A Collateral Transmittal Letter listing all documents being
delivered to the Bank.
Notwithstanding any other Section hereof or of the Loan Documents to the
contrary, no Collateral Value shall be assigned to a Loan until the Bank has
determined that:
(i) All submitted documents, including the Collateral Transmittal
Letter and the Loan Detail Listing appear to be consistent as to borrower
name, loan face amount, loan type (FHA, VA, or conventional; FRM or ARM)
and the Borrower's loan number;
(ii) The note and mortgage/deed of trust each bears an original
signature or signatures which appear to be those of the person or persons
named as the maker and mortgagor/trustor, or, in the case of a certified
copy of the mortgage/deed of trust, such copy bears what appears to be a
reproduction of such signature or signatures.
(iii) Except for (a) the endorsement to the Borrower of the note
in the event such loan was purchased by the Borrower and (b) the
endorsement in blank of the note by the Borrower, neither the note, the
mortgage/deed of trust, nor the assignment(s) of the mortgage/deed of trust
contain any irregular writings which appear on their face to affect the
validity of any such endorsement or to restrict the enforceability of the
document on which they appear;
(iv) The note is endorsed in blank, without recourse, and such
endorsement appears to bear an original signature of an Authorized Person
of the Borrower, based on the current list of such Authorized Persons
supplied by the Borrower; and
(v) The assignment of the mortgage/deed of trust, which shall be
in blank, appears to bear an original signature of an Authorized Person of
the Borrower, based on the current list of such Authorized Person's
supplied by the Borrower.
Any Collateral Transmittal Letter delivered to the Bank hereunder,
together with the documents accompanying it, shall conclusively be presumed to
have been delivered to the Bank on behalf of the Borrower, notwithstanding that
any such Collateral Transmittal Letter shall not be signed or submitted by an
Authorized Person.
4.03 Delivery of Additional Loan Documents Upon Request. Within five
Business Days after receiving a written request from the Bank to deliver the
same with respect to any Pledged Loan, the Borrower shall deliver to the Bank
the following:
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(a) Original guaranties, assignments of rents and other instruments
and documents relating to security for and payment of such Loan, together with
duly executed assignments thereof;
(b) A mortgagee's title insurance policy (or commitment therefor) on
American Land Title Association standard policy (revised coverage, most recent
form) from a substantial and reputable title insurance company acceptable to
FNMA or FHLMC in favor of the Borrower insuring the lien of the mortgage
securing such Loan (subject only to such liens and encumbrances as are generally
acceptable to reputable lending institutions, mortgage investors and securities
dealers) or if such mortgagee's title policy (or commitment therefor) is
generally not available in the state in which the real property subject to such
mortgage is located, an opinion of an attorney, which attorney and opinion are
satisfactory to the Bank, to the effect that the mortgage securing such Loan is
a valid first lien free and clear of all other liens and encumbrances except
such liens and encumbrances as are generally acceptable to reputable lending
institutions, mortgage investors and securities dealers;
(c) Evidence satisfactory to the Bank that the premises covered by the
mortgage securing such Loan is insured against fire and perils of extended
coverage for an amount at least equal to the full insurable value of such
premises or, if less than the full insurable value of such premises and the
Collateral Value of such Loan;
(d) With respect to each Loan, copies of the applicable Firm
Commitment or Standby Commitment and all documents and instruments called for
under the applicable Firm Commitment or Standby Commitment, together with a
certificate signed by an officer of the Borrower that, as of the date of
delivery thereof, such Loan and all documentation therefor satisfies all
requirements and conditions of the applicable Firm Commitment or Standby
Commitment;
(e) Originals, or photocopies, as the Bank may request, of surveys and
all other instruments, documents and other papers pertaining to each such Loan;
(f) With respect to each Loan secured by a Mortgage which is insured
by the FHA, insured by a private mortgage insurer or guaranteed by the VA, a
certificate signed by an officer of the Borrower that, as of the date of
delivery thereof, the Borrower either has possession of the applicable FHA
insurance certificate, private mortgage insurance certificate or VA guarantee
covering such Loan, or has complied with all requirements and conditions for
obtaining possession of such applicable FHA insurance certificate private
mortgage insurance certificate or VA guarantee; and
(g) if any of the documents described on (a) above were executed on
behalf of a party thereto by another person under a power of attorney, a copy of
the original executed power of attorney, certified by the Closing Agent to be a
true and exact copy of the original thereof.
Section 5. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank that:
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(a) all of the representations and warranties set forth in the Credit
Agreement are true and correct;
(b) the Borrower is the legal and equitable owner of the Collateral and its
interests therein are free and clear of all liens, security interests,
charges and encumbrances of every kind and nature (other than as created
hereunder or under Firm Commitments or Standby Commitments or under
assignments to purchasers under such commitments and other than those in
favor of the Bank);
(c) no financing statement or other evidence of a lien covering any of the
Collateral is on file in any public office other than those in favor of the
Bank;
(d) the Borrower has good right, power and lawful authority, to pledge,
assign and deliver the Collateral in the manner hereby done or
contemplated;
(e) no consent or approval (other than any which may be incidental to any
filing which may be necessary to perfect the security interests in the
Collateral) of any governmental body, regulatory authority, person, trust,
or entity is or will be (i) necessary to the validity of the rights created
hereunder or (ii) required prior to the assignment, transfer and delivery
of any of the Collateral to the Bank;
(f) to the Borrower's knowledge, no material dispute, default, right of
set-off, counterclaim or defense exists with respect to all or any part of
the Collateral;
(g) this Pledge and Security Agreement constitutes the legal, valid and
binding obligation of the Borrower enforceable against the Borrower and the
Collateral in accordance with its terms (subject to limitations as to
enforceability which might result from bankruptcy, reorganization,
arrangement, insolvency or other similar laws affecting creditors' rights
generally); and
(h) in making and closing each Pledged Loan, the Borrower has fully
complied with, and all collateral documents delivered with respect to such
Loans comply with, all applicable federal, state and local laws,
regulations and rules, including, but not limited to, (i) usury laws, (ii)
the Real Estate Settlement Procedures Act of 1974, (iii) the Equal Credit
Opportunity Act, (iv) the Federal Truth in Lending Act, (v) Regulation Z of
the Board of Directors of the Federal Reserve Systems, and (vi) all other
consumer protection and truth-in-lending laws which may apply, and in each
case with the regulations promulgated in connection therewith, as the same
may be amended from time to time; and the Borrower shall maintain
sufficient documentary evidence in its files with respect to such Pledged
Loans to substantiate such compliance; and immediately upon (A) the
execution and delivery of the Credit Agreement, the Warehousing Note and
the other Loan Documents, (B) the delivery of the Collateral to the Bank as
contemplated herein and (C) the filing of an appropriate financing
statement in the appropriate filing office or offices, the Bank shall have
a valid, first priority security interest and lien in the Collateral.
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Section 6. POSSESSION OF COLLATERAL; STANDARD OF CARE
The Bank shall exercise reasonable care in the custody and
preservation of the Collateral. The Bank shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral in its
possession if it takes such action for that purpose as the Borrower requests in
writing, but failure of the Bank to comply with any such request shall not
itself be deemed a failure to exercise reasonable care, and no failure of the
Bank to preserve or protect any rights with respect to such Collateral not so
requested by the Borrower, shall be deemed a failure to exercise reasonable care
in the custody or preservation of such Collateral.
Section 7. COLLECTIONS ON COLLATERAL BY THE BORROWER; ACCOUNTING
Until the Bank gives notice to the Borrower pursuant to the
penultimate sentence of this Section 7 or exercises its rights under Sections 8
or 13 hereof, the Borrower shall be entitled (except as otherwise provided
herein) to receive all Collections and use the same in the normal course of
business. Upon notice from the Bank to the Borrower given after the occurrence
and during the continuation of an Event of Default or a Default, the Borrower
shall furnish to the Bank not later than the tenth working day after the end of
each month a report on all Collections received during the preceding month and
provide the same accounting therefor as the Borrower customarily furnishes the
permanent investors therein, including with respect to Collections on each
Pledged Loan: (a) the name of the borrower, (b) the Borrower's loan number for
the Pledged Loan, (c) current principal balance of the Pledged Loan, (d) current
escrow balance with respect to the Pledged Loan, (e) number and amount of past
due payments on the Pledged Loan, (f) the amount of the collections received
during such month with respect to the Pledged Loan, itemized to show (i)
principal portion, (ii) interest portion and (iii) portion thereof representing
amounts paid in escrow for real estate taxes and insurance.
Upon notice from the Bank to the Borrower given after the occurrence
and during the continuation of an Event of Default or of a Default, the Borrower
shall hold all Collections representing principal payments and prepayments and
escrows for real estate taxes and insurance in trust for the Bank and shall
promptly remit the same to the Bank. All amounts representing the principal
payments and prepayments shall be deposited in a collateral account with the
Agent and all amounts representing real estate taxes and insurance escrows shall
be deposited in an escrow account with any bank satisfactory to the Borrower and
the Bank.
Section 8. COLLECTIONS ON COLLATERAL BY THE BANK
Upon the occurrence and continuation of an Event of Default or a
Default, the Bank (upon fifteen (15) days' written notice to the Borrower in the
case of Default), shall be entitled, but not obligated, at any time and from
time to time, to notify and direct any or all obligors with respect to any of
the Collateral thereafter to make all payments on such Collateral directly to
the Bank or such other person or entity designated by the Bank, regardless of
whether the Borrower was previously making collections thereon. The Bank shall
promptly account to the Borrower for all such payments received by the Bank.
Each obligor making such payment to the Bank or such other person or entity
designated by the Bank shall be fully protected in relying on the written
statement of the Bank that it then holds the security interests herein granted
and
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assigned which entitled it to receive such payment, and the receipt of the Bank
or such other person or entity designated by the Bank for such payment shall be
full acquittance therefor to the Obligor making such payment.
Section 9. DEFAULTED LOANS; COLLECTION AND FORECLOSURE PROCEEDINGS
If the Borrower wishes to institute collection or foreclosure
proceedings with respect to a Pledged Loan that still has Collateral Value
pursuant to Exhibit A of Credit Agreement, it shall substitute other Collateral
so that it is entitled pursuant to the terms of the Credit Agreement to a
release of such Pledged Loan. If the Borrower does not own sufficient other
collateral to obtain a release of such Pledged Loan, then so long as a Default
or an Event of Default has not occurred and is continuing, the Bank, upon
written request of the Borrower, will deliver, upon such terms and conditions as
the Bank in its sole discretion may establish, to an attorney at law, as the
agent of the Bank, to the extent necessary for the purpose of enabling said
attorney to institute, in the name of the Borrower or the Bank, or in their
names or in the names of their nominees, as the Bank may determine, collection
and/or foreclosure proceedings on any Pledged Loan in default the following: (a)
the promissory note or other instrument evidencing any such Pledged Loan in
default and (b) the mortgage or deed of trust, if any, that secures such
promissory note, or other Collateral needed by said attorney in connection with
such collection and/or foreclosure proceedings in such manner and in such form
as the Bank deems necessary or desirable to preserve its security interests in
such Collateral, provided such Collateral and all proceeds of any such
collection and/or foreclosure efforts shall remain subject to this Pledge and
Security Agreement and the security interests granted therein and all such
proceeds shall be delivered to the Bank as and when and in the form received to
the extent required by terms of the Credit Agreement. the Borrower hereby
covenants and agrees that, without first obtaining the prior written consent of
the Bank, it will not request or accept any discount on, or any conveyance,
endorsement, transfer or assignment of any right, title or interest in and to
any of the real, personal or mixed properties sold, pledged, mortgaged,
hypothecated, assigned, transferred, set over or conveyed to the Bank as
security for any of the promissory notes or other instruments or agreements
which evidence Pledged Loans in lieu of foreclosure proceedings if, after giving
effect to any such proposed transaction, the Borrowing Base would be less than
the outstanding principal balance of the Warehousing Note. At such time as such
delivery of the Collateral is no longer required in connection with said
collection and/or foreclosure efforts, the same shall be reassigned and
redelivered to the Bank.
Section 10. SALES AND RELEASES OF COLLATERAL
10.01 Redelivery of Collateral for Correction. If no Event of Default
or Default exists, the Bank may redeliver to the Borrower, for correction, any
instrument or document described in Section 4.02 or 4.03 which constitutes or
relates to any of the Collateral, provided that any such redelivery shall be
made against a written Trust Receipt and executed by the Borrower requiring
within 21 calendar days of the redelivery thereof to the Borrower, the return to
the Bank of each such instrument and document. the Borrower shall deliver to the
Bank each such instrument and document as soon as it has completed the
correction thereof and, in any event, within 21 days after its receipt thereof.
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10.02 Delivery for Sale of Pledged Loans. If no Event of Default or
Default exists, the Bank shall, in accordance with Shipping Instructions
provided by the Borrower, transmit on behalf of the Borrower the Pledged Loans,
accompanied by a duly completed and executed Bailee Letter, to an investor who
has issued a Firm Commitment or a Standby Commitment with respect to such
Pledged Loans. Such notification shall require redelivery or payment for the
Pledged Loans delivered within the period provided in the applicable commitment,
but in no event longer than 45 days from the date of delivery without Bank's
written consent, and shall require that, unless the Bank shall otherwise direct
in writing, payment is to be made by wire transfer in funds immediately
available in Minneapolis, Minnesota to U.S. Bank National Association,
Minneapolis, Minnesota, for credit to: EBANK MORTGAGE, LLC Funding and
Settlement Account, Account No. 104756215559 ("Funding and Settlement Account").
Such notification shall also require that any returned documents should be
redelivered to U.S. Bank National Association, 000 Xxxxxxxx Xxxx, XX-XX-X00X,
Xxxxxxxxxxx, Xxxxxxxxx, 00000; Attention: Mortgage Banking Services. All sale
proceeds and returned documents shall remain a part of the Collateral unless
released pursuant to Section 10.04 of this Pledge and Security Agreement. If
required by the applicable commitment, Pledged Loans may be duly assigned of
record to the issuer of such commitment subject to reassignment if not purchased
and with beneficial title to any such assigned Pledged Loans being subject to
the above-stated escrow condition. All Pledged Loans which are so transmitted or
otherwise delivered but not paid for shall continue to constitute Collateral and
shall be included in determining the Borrowing Base. The Bank will use its best
efforts to transmit documents in a timely manner and otherwise to cooperate with
the Borrower in the delivery for sale of Pledged Loans as contemplated by this
Section 10.02, but shall have no liability to the Borrower or otherwise for so
doing or for not so doing except as otherwise provided in Section 6 hereof.
10.03 Formation of Pools. (a) The following provisions shall apply
with respect to the delivery of Pledged Loans which are intended for inclusion
in a pool of Loans backing securities to be issued by GNMA (each such Loan, a
"Pool Mortgage"):
(i) the Borrower shall enter into and conform to such custody and
related agreements required by the Bank to permit the creation, transmittal
to, and maintenance and sale of GNMA Securities in both certificated and
uncertificated book-entry form with Participant Trust Company ("PTC") in
New York City, or such other successor organization or system approved from
time to time by GNMA. Such agreements shall be with such financial
organizations who have been (and continue to be during the term of this
Agreement) approved by the PTC as participants in the PTC and further
approved by the Bank, and shall provide, among other things, that GNMA
Securities pledged hereunder shall be created, maintained and traded at the
direction, the name and for the benefit of the Bank (any such PTC
participant being referred to herein as a "PTC Participant"). The accounts
maintained at the PTC in which GNMA Securities pledged hereunder shall be
delivered to and maintained in, any trading accounts and any accounts into
which proceeds or interest and other amounts payable in respect to any GNMA
Securities which are pledged hereunder are herein collectively referred to
as the "PTC Account." The PTC Account shall, for all purposes of this
Agreement and any GNMA Securities and the proceeds thereof and other
amounts with respect thereto contained therein, be deemed part of the
Collateral hereunder.
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(ii) With respect to each Pledged Loan which is intended for
inclusion in a GNMA mortgage loan pool to back book-entry GNMA Securities,
the Borrower agrees that it will enter into and conform to such agreements
and procedures are as established by the Bank in its sole judgment from
time to time for the delivery of Pledged Loans to a GNMA pool custodian (or
directly to GNMA Securities under such book-entry system or program. The
Bank may enter into such agreements as may be necessary or appropriate in
the sole discretion of the Bank in order to effectuate the issuance,
maintenance and transfer of such GNMA Securities under such book-entry
system or program.
(iii) Upon compliance with the foregoing, the Bank or its
designated agent shall, on the settlement date of the related GNMA trade
(the "Settlement Date"), arrange to have delivered to the GNMA Pool
Custodian the related GNMA Securities, in accordance with the Borrower's
delivery instructions. Upon its receipt of the settlement amount (the
"Settlement Amount") from the PTC Participant, the Bank shall apply the
same in payment of the unpaid principal amount of the Advances outstanding
under the Warehousing Note.
(b) With respect to each Pledged Loan which is intended for inclusion
in a FNMA or FHLMC Mortgage Loan pool to back book-entry FNMA or FHLMC
Securities, the Borrower agrees that it will enter into and conform to such
agreements and procedures are as established by the Bank in its sole judgment
from time to time for the delivery of Pledged Loans to a FHLMC or FNMA pool
custodian (or directly to FHLMC or FNMA, as the case may be) and the issuance,
maintenance and transfer of FHLMC or FNMA Securities under such book-entry
system or program. The Bank may enter into such agreements as may be necessary
or appropriate in the sole discretion of the Bank in order to effectuate the
issuance, maintenance and transfer of such FNMA or FHLMC Securities under such
book-entry system or program.
(c) The Bank will use its best efforts to complete documents in a
timely manner and otherwise to cooperate with the Borrower in the issuance of
Mortgage-backed Securities and the formation of pools of the Borrower Loans as
contemplated by this Section 10.03, but shall have no liability to the Borrower
or otherwise for so doing or for not so doing except as otherwise provided in
Section 6 hereof.
10.04 Release of Particular Collateral. When, by terms of the Credit
Agreement or this Pledge and Security Agreement, the Borrower is entitled to a
release of the Bank's security interest in any Collateral, the Bank shall
promptly upon written request of the Borrower redeliver to the Borrower (a) the
promissory notes evidencing such Pledged Loan endorsed without recourse upon, or
representation or warranty by, the Bank and (b) a reassignment of, without
recourse upon or representation or warranty by, any part of the Collateral that
secures such promissory note. Whether or not the Borrower, by terms of the
Credit Agreement, is entitled to a release of the Bank's Security Interest in
the Collateral, the Bank shall release its Security Interest in any Loan to the
extent necessary to permit the Borrower to execute any full or partial release
of any mortgage, deed of trust, security agreement, financing statement or other
security instrument or deed which the Borrower is contractually obligated to
release upon payment thereof or of a minimum release price provided the Borrower
promptly remits such payment to the Bank for application upon the Secured
Obligations.
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Section 11. FURTHER ASSURANCES
The Borrower, upon the request of the Bank, will promptly correct any
defect, error or omission which may be discovered in the contents of this Pledge
and Security Agreement or in the execution hereof and will do such further acts
and things, and execute, acknowledge, endorse and deliver such further
instruments and agreements, including, but not limited to, notes, mortgages,
deeds of trust, assignments, chattel mortgages, security agreements and
financing statements covering the title to any real, personal or mixed property
now owned or hereafter acquired by the Borrower and now or hereafter
constituting Collateral and supplements to and amendments of this Pledge and
Security Agreement that the Bank may at any time and from time to time
reasonably request in connection with the administration or enforcement of this
Pledge and Security Agreement or related to the Collateral or any part thereof
or in order to assure and confirm unto the Bank the rights, powers and remedies
hereunder or to subject all of the real, personal or mixed properties now owned
or hereafter acquired by the Borrower and now or hereafter constituting
Collateral to, or to confirm or clearly establish that all of said properties
are subject to and encumbered by, a lien to secure the due and punctual payment
of the Secured Obligations. Any such instrument, agreement, schedule or
certificate shall be executed by a duly authorized officer of the Borrower and
shall be in such form and detail as the Bank may reasonably specify. Promptly
upon the request of the Bank, the Borrower will xxxx, or permit the Bank to xxxx
in a reasonable manner, the Borrower's books, records and accounts showing or
dealing with the Collateral with a notation clearly setting forth that the
Collateral has been assigned to the Bank, which notation shall be in form and
substance satisfactory to the Bank.
The Borrower will do all acts and things, and will execute and file or
record all instruments (including mortgages, pledges, assignments, security
agreements, financing statements, amendments to financing statements,
continuation statements, etc.) required, or reasonably requested by the Bank, to
establish, perfect, maintain and continue the perfection and priority of the
security interest of the Bank in the Collateral and will pay the costs and
expenses of: all filings and recordings, including taxes thereon; all searches
necessary, or reasonably deemed necessary by the Bank, to establish and
determine the validity and the priority of such security interest of the Bank;
and also to satisfy all other liens which in the reasonable opinion of the Bank
might prejudice, imperil or otherwise affect the Collateral or the existence or
priority of such security interest. A carbon, photographic or other reproduction
of this Pledge and Security Agreement or of a financing statement shall be
sufficient as a financing statement and may be filed in lieu of the original in
any or all jurisdictions which accept such reproductions. The Borrower
authorizes the Bank to file any financing statement without the signature of the
Borrower, to the extent permitted by applicable law.
Section 12. COVENANTS OF THE BORROWER
So long as this Agreement shall remain in effect, the Borrower will
(a) defend the right, title and interest of the Bank in the Collateral against
the claims and demands of all Persons; (b) not amend, modify, or waive any of
the terms and conditions of, or settle or compromise any claim in respect of,
any Collateral in a manner which would materially adversely affect the interests
of the Bank; (c) not sell, assign, transfer, or otherwise encumber, or release
any of the Collateral or any interest therein except in a manner whereby the
Bank alone would be entitled to receive the proceeds therefrom; (d) notify the
Bank monthly of any default
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that continues beyond any applicable notice or grace period under any Pledged
Loan which has Collateral Value; and (e) maintain, or cause to be maintained, in
its chief executive office or in the offices of a computer service bureau
approved by the Bank, for the processing of Loans and Mortgage-Backed
Securities, originals, or copies if the original has been delivered to the Bank,
of its Loans and all files, surveys, certificates, correspondence, appraisals,
computer programs, tapes, discs, cards, accounting records and other records,
information and data, relating to the Collateral, and give the Bank written
notice of the place where such records, information and data will be maintained.
Section 13. MERS COVENANTS
On and after entry into the Electronic Tracking Agreement, so long as this
Pledge and Security Agreement shall remain in effect, the Borrower shall:
(a) be a "Member" (as defined in the MERS Agreements) of MERSCORP and will
pay all fees required under the MERS Agreements;
(b) maintain the Electronic Tracking Agreement in full force and effect and
timely perform all of its obligations thereunder;
(c) not, unless the Bank shall otherwise consent in writing, enter into any
additional agreement equivalent to the Electronic Tracking Agreement with
MERS, MERSCORP and any creditor other than the Bank;
(d) provide the Bank with copies of any new MERS Agreement or any
amendment, supplement or other modification of any MERS Agreement (other
than the Electronic Tracking Agreement);
(e) take all steps necessary to cause the Bank to be designated as an
"Associated Member" on the MERS System and otherwise enter into all MERS
Agreements necessary to permit the Bank to have access to information on
the Pledged Loans held on the MERS System;
(f) not amend, terminate or revoke, or enter into any agreement that
contradicts, the Electronic Tracking Agreement;
(g) identify to the Bank each Pledged Loan that is registered in the MERS
System, at the earlier of the time it is so registered or the time it is
pledged or deemed pledged hereunder, as so registered;
(h) at any time at the request of the Bank, take such actions as may be
necessary to register the pledge of any Pledged Loan to the Bank on the
MERS System;
(i) at the request of the Bank, take such actions as may be requested by
the Bank to (i) transfer beneficial ownership of any Mortgage securing a
Pledged Loan to the Bank on
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the MERS System, or (ii) de-register or re-register any Pledged Loan on, or
withdraw any Pledged Loan from, the MERS System;
(j) unless the Bank shall otherwise agree in writing, take all actions
necessary to assure that the Bank is listed as Interim Funder in respect of
each Pledged Loan on the MERS System until the conditions for release of
such Pledged Loan under Section 10 hereof are satisfied;
(k) provide the Bank with copies of any or all of the following reports
with respect to the Pledged Loans registered on the MERS System, at the
request of the Bank: (i) Co-existing Security Interest Reports, (ii)
Release of Security Interest by Interim Funding Reports, (iii) Paid in Full
Verification Reports, (iv) Interim Funding Rejects Reports, and (v) such
other reports as the Bank may request to verify the status of any Pledged
Loan on the MERS System; and
(l) notify the Bank of any withdrawal or deemed withdrawal of the
Borrower's membership in the MERS System or any deregistration of any
Pledged Loan previously registered on the MERS System.
Section 14. BANK APPOINTED ATTORNEY-IN-FACT
Effective upon the occurrence and continuation of an Event of Default
or a Default, the Borrower hereby appoints the Bank the Borrower's
attorney-in-fact, with full power of substitution to submit any Pledged Loan
which constitutes Collateral and related documents to a purchaser under a Firm
Commitment or a Standby Commitment and for the purpose of carrying out the
provisions of this Pledge and Security Agreement and taking any action and
executing in the name of the Borrower without recourse to the Borrower any
instrument, including, but not limited to, the instruments described in Section
2 hereof, which the Bank may deem necessary or advisable to accomplish the
purpose hereof, which appointment is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, the Bank shall have the right
and power to receive, endorse and collect checks and other orders for the
payment of money made payable to the Borrower representing any payment or
reimbursement made under, or pursuant or with respect to, the Collateral or any
part thereof and to give full discharge for the same. Whether or not an Event of
Default or a Default shall have occurred or be continuing, the Borrower hereby
authorizes the Bank in its discretion at any time and from time to time (i) to
complete any assignment of real estate mortgage or deed of trust which
heretofore was, or hereafter at any time may be, executed and delivered by the
Borrower to the Bank so that such assignment describes a real estate mortgage or
deed of trust which is security for any Loan now or hereafter at any time
constituting Collateral and (ii) complete any other assignment or endorsement
that was delivered in blank hereunder.
Section 15. EVENTS OF DEFAULT; REMEDIES
If one or more Events of Default shall occur, then the Bank, in
addition to any and all other rights and remedies which the Bank may then have
hereunder, under the Credit Agreement, under the Uniform Commercial Code of the
State of Minnesota or of any other pertinent jurisdiction (the "Code"), or under
any other instrument, or which the Bank may have
15
at law or in equity, or otherwise, the Bank may, at its option: (a) in the name
of the Borrower, or otherwise, demand, collect, receive and receipt for,
compound, compromise, settle and give acquittance for, and prosecute and
discontinue any suits or proceedings in respect of any or all of the Collateral;
(b) take any action which the Bank may deem necessary or desirable in order to
realize on the Collateral, including the power to perform any contract, endorse
in the name of the Borrower without recourse to the Borrower any checks, drafts,
notes or other instruments or documents received in payment of or on account of
the Collateral; (c) enter upon the premises where any of the Collateral not in
the possession of the Bank or its agent is located and take possession thereof
and remove the same, with or without judicial process; (d) reduce its claim to
judgment or foreclosure or otherwise enforce the security interests herein
granted and assigned, in whole or in part, by any available judicial procedure;
(e) after notification, if any, provided for herein, sell, lease, or otherwise
dispose of, at the office of the Bank, on the premises of the Borrower, or
elsewhere, all or any part of the Collateral, in its then condition or following
any commercially reasonable preparation or processing, and any such sale or
other disposition may be as a unit or in parcels, by public or private
proceedings, and by way of one or more contracts (it being agreed that the sale
of any part of Collateral shall not exhaust the Bank's power of sale, but sales
may be made from time to time, and at any time, until all the Collateral has
been sold or until all Secured Obligations have been fully paid and performed),
and at any such sale it shall not be necessary to exhibit any of the Collateral;
(f) at its discretion, surrender any policies of insurance on the Collateral
consisting of real or personal property owned by the Borrower and receive the
unearned premiums, and, in connection therewith, the Borrower hereby appoints
the Bank as the agent and attorney-in-fact for the Borrower to collect such
premiums; (g) at its direction, retain the Collateral in satisfaction of the
Secured Obligations whenever the circumstances are such that the Bank is
entitled to do so under the Code or otherwise; and (h) exercise any and all
other rights, remedies and privileges it may have under this Pledge and Security
Agreement, or any of the other promissory notes, assignments, mortgages, deeds
of trust, chattel mortgages, security agreements, transfers of lien, and any
other instruments, documents, and agreements executed and delivered pursuant to
the terms hereof or pursuant to the terms of the Credit Agreement. the Borrower
acknowledges and agrees that (x) a private sale of the Collateral pursuant to a
Firm Commitment or Standby Commitment shall be deemed to be a sale of the
Collateral in a commercially reasonable manner and (y) the Collateral is
intended to be sold and that none of the Collateral is of a type or kind
intended by the Borrower to be held for investment or any purpose other than for
sale.
Section 16. WAIVERS
the Borrower, for itself and all who may claim under the Borrower, as
far as the Borrower now or hereafter lawfully may, also waives all right to have
all or any portion of the Collateral marshaled upon any foreclosure hereof and
agrees that any court having jurisdiction over this Pledge and Security
Agreement may order the sale of all or any portion of the Collateral as an
entirety. Any sale of, or the grant of options to purchase (for the option
period thereof or after exercise thereof), or any other realization upon, all or
any portion of the Collateral under clause (e) of Section 14 shall operate to
divest all right, title, interest, claim and demand, either at law or in equity,
of the Borrower in and to the Collateral so sold, optioned or realized upon, and
shall be a perpetual bar both at law and in equity against the Borrower and
against any and all persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon or any part thereof, from, through and under the
Borrower. No delay on the part of
16
the Bank in exercising any power of sale, lien, option or other right hereunder
and no notice or demand which may be given to or made upon the Borrower with
respect to any power of sale, lien, option or other right hereunder shall
constitute a waiver thereof, or limit or impair the right of the Bank to take
any action or to exercise any power of sale, lien, option or any other right
under this Pledge and Security Agreement or the Credit Agreement, or otherwise,
nor shall any single or partial exercise thereof, or the exercise of any power,
lien, option or other right under this Pledge and Security Agreement or
otherwise, all without notice or demand (except as otherwise provided by the
terms of this Pledge and Security Agreement), prejudice its rights against the
Borrower in any respect. Each and every remedy given the Bank shall, to the
extent permitted by law, be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.
Section 17. NOTICE
Reasonable notification of the time and place of any public sale of
any of the Collateral, or reasonable notification of the time after which any
private sale or other intended disposition of any of the Collateral is to be
made, shall be sent to the Borrower and to any other person entitled under the
Code to notice; provided, that if any of the Collateral threatens to decline
speedily in value, or is of a type customarily sold on a recognized market, the
Bank may sell or otherwise dispose of the Collateral without notification,
advertisement, or other notice of any kind. It is agreed that notice sent or
given not less than ten (10) calendar days prior to the taking of the action to
which the notice relates is reasonable notification and notice for the purposes
of this paragraph and that such notice is sufficient if it states only the
number of Loans to be sold and their aggregate outstanding principal balance,
together with the time and place of sale. Any notice to the Borrower hereunder
shall be in writing and shall be effective on the date on which such notice is
manually delivered to an officer of the Borrower or the business day after being
deposited with Federal Express or equivalent national overnight delivery service
in a properly addressed envelope addressed to:
EBANK MORTGAGE, LLC
0000 Xxxx Xxxx Xx.
Xxxxx 000
Xxxxxx, Xx. 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
or at such other address as the Borrower may designate to the Bank. Any notice
to the Bank shall be in writing and shall be effective on the date on which such
notice is manually delivered to an officer of the Bank or deposited with Federal
Express or equivalent national overnight delivery service in a properly
addressed envelope addressed to:
U. S. Bank National Association
Mortgage Banking Services Division
Mail Code BC-MN-H03B
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Vice President
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Section 18. APPLICATION OF PROCEEDS
Until all Secured Obligations owed to the Bank have been paid in full,
any and all proceeds ever received by the Bank from any sale or other
disposition of the Collateral, or any part thereof, or the exercise of any other
remedy pursuant to Section 8 or by virtue of Section 14, shall be applied by the
Bank as follows:
First: to the payment of all out-of-pocket costs and expenses of sale
or other disposition of any of the Collateral, including the out-of-pocket
expenses of the Bank and the reasonable fees and out-of-pocket expenses of
counsel employed in connection therewith, and to the payment of all advances
made by the Bank for the account of the Borrower hereunder and the payment of
all costs and expenses incurred by the Bank in connection with the
administration and enforcement of this Pledge and Security Agreement, to the
extent that such advances, costs and expenses have not been reimbursed to the
Bank;
Second: to the payment in full of the Secured Obligations; and
Third: the balance (if any) of such proceeds shall be paid to the
Borrower, its successors or assigns, or as a court of competent jurisdiction may
direct, provided that if such proceeds are not sufficient to satisfy the Secured
Obligations in full, the Borrower shall remain liable to the Bank for any
deficiency.
Section 19. INDEMNIFICATION, COSTS AND EXPENSES
The Borrower will (a) pay all reasonable out-of-pocket expenses,
including, without limitation, any recording or filing fees, fees of title
insurance companies in connection with recordings or filings, costs of mortgage
insurance policies and endorsements thereof and mortgage registration taxes (or
any similar fees or taxes), incurred by the Bank in connection with the
administration of this Pledge and Security Agreement (whether or not the
transactions hereby contemplated shall be consummated), the enforcement of the
rights of the Bank in connection with this Pledge and Security Agreement and
including, without limitation, the reasonable fees and disbursements of counsel
for the Bank; (b) pay, and hold the Bank harmless from and against, any and all
present and future stamp and other similar taxes with respect to the foregoing
matters and save the Bank and Bank's officers, directors, and agents harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission to pay such taxes; and (c) indemnify, pay and hold harmless
the Bank and Bank's officers, directors, and agents from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, suits, costs,
expenses and disbursements of any kind whatsoever (the "Indemnified
Liabilities") which may be imposed on, incurred by or asserted against them in
any way relating to or arising out of this Pledge and Security Agreement or the
Credit Agreement or any of the transactions contemplated hereby or thereby to
the extent that any such Indemnified Liabilities result (directly or indirectly)
from any claims made, or any actions, suits, or proceedings commenced or
threatened, by or on behalf of the Borrower, including, without limitation, any
creditor, security holder, shareholder, depositor, customer, director, officer,
employee and/or agent thereof acting in such capacity. The undertakings of the
Borrower set forth in this Section shall survive the payment in full of the
Warehousing Note and the termination of this Pledge and Security Agreement, the
Credit Agreement and the other Loan Documents.
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Section 20. TERMINATION
This Pledge and Security Agreement shall terminate when all the
Secured Obligations have been fully paid and performed, at which time the Bank
shall reassign and redeliver, without recourse upon, or representation or
warranty by, the Bank and at the expense of the Borrower, to the Borrower, or to
such other person or persons as the Borrower shall designate, against receipt,
such of the Collateral (if any) as shall not have been sold or otherwise
disposed of by the Bank, pursuant to the terms hereof or the Credit Agreement,
and shall still be held by the Bank, together with appropriate instruments of
reassignment and release.
Section 21. NON-ASSUMPTION OF LIABILITY
Nothing herein contained shall relieve the Borrower from performing
any covenant, agreement or obligation on the part of the Borrower to be
performed under or in respect to any of the Collateral or from any liability to
any party or parties having an interest therein or impose any liability on the
Bank for the acts or omissions of the Borrower in connection with any of the
Collateral. The Bank shall not assume or become liable for, nor shall it be
deemed or construed to have assumed or become liable for, any obligation of the
Borrower with respect to any of the Collateral, or otherwise, by reason of the
grant to it of security interests in the Collateral. While the Bank shall use
reasonable care in the custody and preservation of the Collateral as provided in
Section 6 hereof, the Bank shall not have any fiduciary responsibility to the
Borrower with respect to the holding, maintenance or transmittal of the
Collateral delivered hereunder.
Section 22. GOVERNING LAW
This Pledge and Security Agreement shall be a contract made under and
governed by the internal law, and not the law of conflicts, of the State of
Minnesota. The jurisdiction, venue and waiver of jury trial provisions of the
Credit Agreement shall apply equally to this Pledge and Security Agreement.
Section 23. COUNTERPARTS: EFFECTIVENESS
This Pledge and Security Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. This Pledge and
Security Agreement shall become effective upon the written or telephonic
notification of such execution and authorization of delivery thereof has been
received by the Bank.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be executed as of the day and year first above written.
EBANK MORTGAGE, LLC,
a Georgia limited liability company
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: President
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Its Vice President
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