exv10w13





Exhibit 10.13




0073 (Rev. 12/03/04)




ADVANCES AND SECURITY AGREEMENT




          This ADVANCES AND SECURITY AGREEMENT (this “Agreement”), dated as of the earlier of the date
of execution by the Bank (as hereinafter defined) and April 15, 2005, is entered into between
EverBank, a federal savings bank organized under the laws of the United States of America and
located in the state of Florida, having its principal place of business at 8100 Nations Way,
Jacksonville, FL 32256-6177 (the “Borrower”) and the Federal Home Loan Bank of Atlanta, a
corporation organized and existing under the laws of the United States, having its principal office
at 1475 Peachtree Street, N.E., Atlanta, Georgia 30309 (the
“Bank”).




          WHEREAS, the Borrower desires from time to time to participate in the Bank’s credit programs
under the terms of this Agreement, and the Bank is authorized to extend credit to the Borrower
pursuant to the provisions of the Federal Home Loan Bank Act, as now and hereafter amended,
modified, supplemented or restated (the “Act”), and the regulations and guidelines of the Federal
Housing Finance Board (the “Board”) or any successor entity, as now and hereafter in effect,
including all amendments, modifications, supplements and restatements thereto or thereof
(collectively, the “Regulations”);




          WHEREAS, the Bank requires that extensions of credit by the Bank be secured pursuant to this
Agreement, and the Borrower and any Obligor (as hereinafter defined) joined to this Agreement from
time to time, as provided herein, agree to provide the security the Bank requests in accordance
with this Agreement; and




          WHEREAS, the Borrower and each other Obligor acknowledges, understands and agrees that (a) the
Bank shall not have any obligation or commitment (under this Agreement, the Credit and Collateral
Policy, or otherwise) to approve any application by the Borrower for Advances, Credit Products,
Derivative Transactions, or Other Products, (b) the terms and conditions of any Advances, Credit
Products, Derivative Transactions, or Other Products which the Bank may make or issue, except for
any such terms and conditions specified in a Confirmation, may change after the date made or
issued, in connection with a modification to the Bank’s Credit and Collateral Policy as provided in
Section 6.01 of this Agreement, and (c) the Bank, in its sole discretion, may modify the Credit and
Collateral Policy from time to time after the date of this Agreement and need not obtain any
further consent from any Obligor in order for those modifications to become binding upon each
Obligor.




          NOW THEREFORE, the Borrower and the Bank agree as follows:




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ARTICLE I



DEFINITIONS



     Section 1.01
Definitions. As used herein, the following terms shall have the following meanings:



     (A) “Advances” means any and all loans or other similar extensions of credit, heretofore, now
or hereafter granted by the Bank to, on behalf of, or for the account of, the Borrower.



     (B) “Affiliate” means an affiliate of the Borrower which (i) has been accepted by the Bank, in
its sole discretion, as a person which may pledge collateral to the Bank and otherwise support the
obligations of the Borrower to the Bank hereunder and (ii) has entered into a Joinder Agreement.
The Affiliate and the Borrower are hereinafter jointly referred to as the “Obligors.”



     (C) “Application” means an application or other writing, in such form or forms as shall be
specified by the Bank from time to time, by which the Borrower requests an Advance or a Credit
Product, and by which an Obligor requests a Derivative Transaction or an Other Product.



     (D) “Borrowed Money” means, with respect to any Person, without duplication (a) all
indebtedness for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are customarily made, (c) that
portion of obligations with respect to capital leases that is properly classified as a liability on
a balance sheet in conformity with GAAP, (d) any obligations of such Person issued or assumed as
the deferred purchase price of property or services purchased by such Person (other than trade debt
incurred in the ordinary course of business and due within six months of the incurrence thereof or
evidenced by a note or other instrument), (e) all Borrowed Money of others secured by (or for which
the holder of such Borrowed Money has an existing right, contingent or otherwise, to be secured by)
any lien on, or payable out of the proceeds of production from, any property or asset owned, held
or acquired by such Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person, (f) all guaranty obligations
of such Person in respect of any Borrowed Money of any other person, (g) the maximum amount of all
standby letters of credit issued or bankers’ acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (h) the
principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product plus any accrued interest
thereon, and (i) the Borrowed Money of any partnership or unincorporated joint venture in which
such Person is a general partner or joint venturer.



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     (E) “Borrowing Documents” means this Agreement (as amended by any and all Joinder Agreements
and any and all Collateral Pledge Amendments), all Applications, all Confirmations, and all
Supplemental Documentation.



     (F) “Capital Stock” means all of the capital stock in the Bank held by the Borrower and all
payments which have been or hereafter are made on account of subscriptions to and all unpaid
dividends on such capital stock.



     (G) “Collateral” means (i) all property, including the products and proceeds thereof,
heretofore assigned, transferred or pledged to the Bank by any Obligor as collateral for an
Advance, a Credit Product, a Derivative Transaction, an Other Product or any other Liability prior
to the date hereof and (ii) all Capital Stock, Deposits, Residential First Mortgage Collateral,
Commercial Mortgage Collateral, Multifamily Mortgage Collateral, Government and Agency Securities
Collateral, HELOC and Second Mortgage Collateral, Other Securities Collateral and Other Collateral,
including the products and proceeds thereof, which is now or hereafter pledged to the Bank pursuant
to Section 3.01 hereof or any Joinder Agreement.



     (H) “Collateral Maintenance Level” means the aggregate dollar amount equal to such
percentage(s) as the Bank may specify from time to time of all Liabilities (1) for Advances and
Credit Products; (2) with respect to Derivative Transactions for which an Obligor is required to
maintain Collateral; and (3) with respect to any Other Product or under any Borrowing Documents.
The Bank may increase or decrease the Collateral Maintenance Level at any time as provided in the
Credit and Collateral Policy, and such increase or decrease, as specified by the Bank, will apply
to all existing as well as after-arising Liabilities.



     (I) “Collateral Pledge Amendment” means a Collateral Pledge Amendment, substantially in the
form attached hereto as Exhibit B, whereby the Obligors and the Bank have agreed to amend the
collateral pledge provisions of Section 3.01(ii) hereof as provided therein.



     (J) “Commercial Mortgage Collateral” means all notes, bonds, instruments, mortgages, deeds of
trust, deeds to secure debt, security agreements, policies and certificates of insurance,
guarantees, evidences of recordation, applications, underwriting materials, surveys, appraisals,
approvals, permits, notices, opinions of counsel, loan servicing data and all other electronically
stored and written records or materials relating to fully-disbursed loans held by any Obligor
secured by a first lien on property improved by one or more commercial buildings, together with all
rights and interests associated with such loans and documents, including all legal, beneficial,
residual and servicing rights, and any endorsements or assignments thereof.



     (K) “Confirmation” means a confirmation, in such form or forms as the Bank may generate from
time to time, by which the Bank agrees to, confirms and provides any additional terms with respect
to any Advance, Credit Product, Derivative Transaction, or Other Product.



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     (L) “Credit and Collateral Policy” means the policies and procedures of the Bank governing the
administration of its credit and other programs, including the requirements for maintenance of
collateral to secure extensions of credit by the Bank, as any such policies and procedures may be
amended, supplemented, restated or otherwise modified from time to time hereafter, in accordance
with Section 6.01.



     (M) “Credit Products” means any and all commitments or obligations under which the Bank agrees
to make payments on behalf of or for the account of the Borrower, including letters of credit,
guarantees or other arrangements intended to facilitate transactions between the Borrower and third
parties, or under which the Bank enters into a credit or financial accommodation, agreement or
other arrangement with the Borrower, irrespective of whether the Bank’s obligation is contingent or
conditional.



     (N) “Deposits” means all deposit accounts maintained by any Obligor with the Bank, all money,
cash, checks, drafts, notices, bills, bills of exchange and bonds deposited therein or credited
thereto, any increases, renewals, extensions, substitutions and replacements thereof, whether or
not deposited in any such deposit account and all statements, certificates, passbooks and
instruments representing any such deposit account.



     (O) “Derivative Transactions” means all interest rate swaps, all interest rate caps, floors
and collars, all currency exchange transactions, all options and all similar transactions entered
into between the Bank and any Obligor.



     (P) “GAAP” means generally accepted accounting principles.



     (Q) “Government and Agency Securities Collateral” means mortgage-backed securities (including
participation certificates) issued by the Federal Home Loan Mortgage Corporation or the Federal
National Mortgage Association, obligations guaranteed by the Government National Mortgage
Association, and obligations issued or guaranteed by the United States or an agency thereof.



     (R) “HELOC and Second Mortgage Collateral” means all notes, bonds, instruments, mortgages,
deeds of trust, deeds to secure debt, security agreements, policies and certificates of insurance
or guarantees, evidences of recordation, applications, underwriting materials, surveys, appraisals,
approvals, permits, notices, opinions of counsel and loan servicing data and all other
electronically stored and written records or materials relating to home equity lines of credit held
by any Obligor, loans held by any Obligor secured by a junior lien on one-to-four unit
single-family dwellings, or other similar loans held by any Obligor which have not been fully
disbursed, together with all rights and interests associated with such loans and documents,
including all legal, beneficial, residual and servicing rights, and any endorsements or assignments
thereof.



     (S) “Joinder Agreement” means a joinder agreement, substantially in the form attached hereto
as Exhibit A, whereby an Obligor has agreed in writing to be primarily,



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jointly and severally liable for all obligations of all of the Obligors to the Bank under this
Agreement and to pledge Collateral satisfactory to the Bank as security for such obligations.




     (T) “Lendable Collateral Value” means an amount equal to such percentage as the Bank shall
from time to time, in its sole discretion, ascribe in the Credit and Collateral Policy to the
market value or unpaid principal balances (as the Bank may specify or define) of Qualifying
Collateral.



     (U) “Liabilities” means all fees, expenses, obligations, liabilities or indebtedness of any
Obligor to the Bank, due or to become due, direct or indirect, absolute or contingent, joint or
several, now existing or hereafter at any time created, arising or incurred, under this Agreement,
any Application, Confirmation, Supplemental Documentation, Advance, Derivative Transaction, Credit
Product, Other Product or Deposit, including any overdrafts or other charges in connection
therewith, or under any other obligation for any other service provided by the Bank, including any
obligations under indemnification provisions in any agreement or document between any Obligor and
the Bank, and any renewal, extension or substitution of any such obligations, liabilities and
indebtedness, including reasonable attorneys’ fees of the Bank in the collection thereof and the
enforcement of any remedies with respect to any Collateral therefor.



     (V) “Material Adverse Effect” means (a) a material adverse effect upon the business,
operations, properties, assets or condition (financial or otherwise) of any Obligor, or (b) the
impairment of the ability of any Obligor to perform its obligations under any Borrowing Document to
which it is a party or of Bank to enforce any Borrowing Document or collect any of the Liabilities.
In determining whether any individual event would result in a Material Adverse Effect,
notwithstanding that such event does not of itself have such effect, a Material Adverse Effect
shall be deemed to have occurred if the cumulative effect of such event and all other then existing
events would result in a Material Adverse Effect. In determining whether an event would result in
a Material Adverse Effect on any Affiliate, a Material Adverse Effect shall be deemed to have
occurred with respect to such Affiliate if the effect of such event would result in a Material
Adverse Effect on the Borrower and such Affiliate, taken as a whole.



     (W) “Multifamily Mortgage Collateral” means all notes, bonds, instruments, mortgages, deeds of
trust, deeds to secure debt, security agreements, policies and certificates of insurance,
guarantees, evidences of recordation, applications, underwriting materials, surveys, appraisals,
approvals, permits, notices, opinions of counsel, loan servicing data and all other electronically
stored and written records or materials relating to the fully-disbursed loans held by any Obligor
secured by a first lien on property improved by one or more multifamily buildings, together with
all rights and interests associated with such loans and documents, including all legal, beneficial,
residual and servicing rights, and any endorsements or assignments thereof.



     (X) “Obligors” means, collectively, the Borrower and any Affiliate joined hereunder as
provided herein.



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     (Y) “Other Collateral” means such items of personal property, other than Capital Stock,
Deposits, Residential First Mortgage Collateral, Commercial Mortgage Collateral, Multifamily
Mortgage Collateral, Government and Agency Securities Collateral, HELOC and Second Mortgage
Collateral, and Other Securities Collateral, that are offered by any Obligor as Collateral and are
specifically accepted by the Bank as Collateral; provided, Other Collateral may from time to time
include specific items of Residential First Mortgage Collateral, Commercial Mortgage Collateral,
Multifamily Mortgage Collateral and HELOC and Second Mortgage Collateral which are identified and
offered by an Obligor as Collateral and are specifically accepted by the Bank as Collateral.



     (Z) “Other Products” means all products and services, other than an Advance, Credit Product or
Derivative Transaction, offered by the Bank to any Obligor from time to time, including
correspondent banking services, mortgage purchase programs and affordable housing and community
investment products and services.



     (AA) “Other Securities Collateral” means securities (other than Government and Agency
Securities Collateral) representing unsubordinated interests in, or collateralized by first lien
security interests in, both the interest and principal payments on first lien residential
mortgages.



     (BB) “Person” means an individual, partnership, corporation, trust, joint venture, joint stock
company, limited liability company, association, unincorporated organization, governmental
authority, or any other entity.



     (CC) “Qualifying Collateral” means Collateral, other than Capital Stock and Deposits, which is
eligible as collateral to support the origination of Advances, Credit Products, Derivative
Transactions and Other Products under the terms and conditions of the Act, the Regulations and the
Credit and Collateral Policy, and which satisfies such other requirements for lending as may be
established by the Bank.



     (DD) “Residential First Mortgage Collateral” means all notes, bonds, instruments, mortgages,
deeds of trust, deeds to secure debt, security agreements, policies and certificates of insurance
or guarantees, evidences of recordation, applications, underwriting materials, surveys, appraisals,
approvals, permits, notices, opinions of counsel and loan servicing data and all other
electronically stored and written records or materials relating to fully-disbursed loans held by
any Obligor secured by a first lien on one-to-four unit single family dwellings, together with all
rights and interests associated with such loans and documents, including all legal, beneficial,
residual and servicing rights, and any endorsements or assignments thereof.



     (EE) “Supplemental Documentation” means any document, agreement or other writing (other than
this Agreement) between the Bank and an Obligor relating to Deposits, Advances, Credit Products,
Derivative Transactions and Other Products, including reimbursement agreements, mortgage purchase
documents, wire transfer agreements, automated clearinghouse agreements, agreements related to the
loans held for sale program,



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International
Swap Dealers Association (“ISDA”) master agreements, schedules to ISDA master
agreements and credit support annexes to ISDA master agreements.




     Section 1.02 Other Definitional Provisions. References to “Sections,” “Subsections” and “Exhibits” shall be to Sections, Subsections and
Exhibits, respectively, of this Agreement unless otherwise specifically provided. Any of the terms
defined in Section 1.01 may, unless the context otherwise requires, be used in the singular or the
plural depending on the reference. In this Agreement, “hereof,” “herein,” “hereto,” “hereunder”
and the like mean and refer to this Agreement as a whole and not merely to the specific section,
paragraph or clause in which the respective word appears; words importing any gender include the
other gender; references to “writing” include printing, typing, lithography, facsimile, electronic
and other means of reproducing words or other data in a tangible visible form; the words
‘including,” “includes” and “include” shall be deemed to be followed by the words “without
limitation”; references to agreements and other contractual instruments shall be deemed to include
subsequent amendments, assignments, and other modifications thereto, but only to the extent such
amendments, assignments and other modifications are not prohibited by the terms of this Agreement;
references to Persons include their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such Persons; and all
references to statutes and related regulations shall include any amendments of same and any
successor statutes and regulations.



ARTICLE II




ADVANCES AGREEMENT



     Section 2.01 Documentation. Subject to Section 6.03 hereof, the Borrower may apply to the Bank for Advances, Credit
Products, Derivative Transactions and Other Products in accordance with the Credit and Collateral
Policy. The final terms of any Advance, Credit Product, Derivative Transaction or Other Product
shall be conclusively established by this Agreement and any Confirmation and Supplemental
Documentation related thereto. Any Obligor shall be estopped from asserting any claim or defense
with respect to the terms of any Confirmation or other Supplemental Documentation that is not
required to be signed by the Borrower applicable to any Advance, Credit Product, Derivative
Transaction or Other Product unless, within the earlier of (i) any time period specified in any
Confirmation or Supplemental Documentation relating thereto and (ii) five (5) business days of
receipt of the final documents relating to such product or service, the Borrower delivers to the
Bank a written notice specifying the disputed term(s) or condition(s) of the Advance, Credit
Product, Derivative Transaction or Other Product. Upon the request of the Bank, or as provided in
the Credit and Collateral Policy, the Borrower shall sign and deliver to the Bank a promissory note
or notes and such other Supplemental Documentation in such form as the Bank may reasonably require
evidencing any Advance, Credit Product, Derivative Transaction or Other Product. Unless otherwise
agreed by the Bank in writing, all Advances shall be made by crediting the Borrower’s demand
deposit account(s) with the Bank. All Borrowing Documents shall be deemed to have been executed
and delivered in Atlanta, Georgia, and all payments made under the Borrowing Documents shall be
deemed to have



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been made in Atlanta, Georgia. The Bank’s obligation to fund any portion of any approved Advance,
issue any approved letter of credit, guaranty or financial accommodation relating to a Credit
Product or continue under any Derivative Transaction or Other Product shall be subject to (i)
continuing compliance by the Obligors with the terms and provisions of this Agreement (ii) there
having occurred no Event of Default hereunder and (iii) the continuing satisfaction by the Obligors
of the credit and collateral considerations of the Bank and the eligibility requirements and
policies prescribed in the Act, the Regulations and the Credit and Collateral Policy.




     Section 2.02 Repayment of Liabilities. Each Obligor agrees, jointly and severally, to repay all Liabilities in accordance with this
Agreement, the Credit and Collateral Policy and the terms and conditions of the Confirmation and
Supplemental Documentation evidencing such Liabilities. Interest shall be paid on all Liabilities
at the times specified by the Bank in the Credit and Collateral Policy and in the Confirmation or
Supplemental Documentation and shall be charged for each day that such Liabilities are outstanding
at the rate applicable to such Liabilities. Each Obligor shall pay to the Bank, immediately and
without demand, interest on any past due principal of and interest on any Liabilities at an
interest rate which is the greater of (i) the rate applicable to such Liabilities plus one percent
or (ii) the rate in effect and being charged by the Bank from time to time on overdrafts on demand
deposit accounts of its members, but in no event more than any applicable limit established by the
Regulations (the “Default Rate”). The Borrower shall ensure that, on any day on which any payment
is due to the Bank with respect to any Liabilities, whether by maturity, prepayment or
acceleration, the Borrower’s demand deposit account(s) with the Bank has an available balance in an
amount at least equal to the amounts then due and payable to the Bank, and the Borrower hereby
authorizes the Bank to debit the Borrower’s demand deposit account(s) with the Bank for all amounts
due and payable with respect to any Liabilities and for all other amounts due and payable
hereunder. In the event that the available balance in the Borrower’s demand deposit account(s) is
insufficient to pay such due and payable amounts, the Bank may, without notice to or request from
any Obligor, apply any other deposits, credits, or monies of any Obligor then in the possession of
the Bank to the payment of amounts due and payable. Each Obligor agrees that, in the event that
any such debit results in any of the Borrower’s accounts with the Bank being overdrawn, the Obligor
shall immediately reimburse the Bank for such overdraft amount and pay overdraft charges thereon at
the Default Rate, in addition to any minimum fees for overdrafts imposed by the Bank from time to
time. All payments with respect to liabilities shall be applied first to any fees or charges
applicable thereto and to interest due thereon, in such order as the Bank may determine, and then
to any principal amount thereof that is then due and payable.



     Section 2.03 Payment of Prepayment Charges. All prepayment fees and charges described in the Credit and Collateral Policy, or in any
Application, Confirmation or Supplemental Documentation, shall be payable at the time of any
voluntary or involuntary payment of all or part of the principal of any Liabilities prior to the
originally scheduled maturity thereof, including without limitation payments that are made as a
part of a liquidation of any Obligor or that become due by operation of law or as a result of an
acceleration pursuant to Section 5.02 hereof, whether such payment is made by any Obligor,



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by a conservator, receiver, liquidator or trustee of or for any Obligor, or by any successor to or
any assignee of any Obligor.




     Section 2.04 Compliance with the Credit and Collateral Policy. Each Obligor hereby agrees to comply at all times with the Credit and Collateral Policy.



ARTICLE III




SECURITY AGREEMENT



     Section 3.01 Creation of Security Interest. As security for all Liabilities, the Borrower hereby assigns, transfers, and pledges to the
Bank, and grants to the Bank a security interest in, (i) all property assigned, transferred or
pledged by the Borrower to the Bank as collateral securing Liabilities and other obligations of the
Borrower as of the date hereof, (ii) except as otherwise provided in a Collateral Pledge Amendment,
all of the Capital Stock, Deposits, Residential First Mortgage Collateral, Commercial Mortgage
Collateral, Multifamily Mortgage Collateral and HELOC and Second Mortgage Collateral now or
hereafter owned by the Borrower and (iii) all of the Government and Agency Securities Collateral,
Other Securities Collateral, and Other Collateral, specifically identified by the Borrower to the
Bank as Collateral and accepted by the Bank, and all proceeds and products of any items of the
Collateral described in clauses (i) through (iii) above. In addition, as security for all
Liabilities, each Affiliate will assign, transfer and pledge to the Bank, and grant to the Bank a
security interest in, the Collateral set forth in its Joinder Agreement.



     Section 3.02 Representations and Warranties Concerning Collateral. Each Obligor represents and warrants to the Bank, as of the date hereof, the date of each
Advance, Credit Product, Derivative Transaction or Other Product, and the date of delivery of each
collateral report required under Section 3.06(A) hereof, as follows:



     (A) The Obligor owns and has marketable title to the Collateral pledged by it hereunder and
has the right and authority to grant a security interest in such Collateral and to subject all of
such Collateral to this Agreement;



     (B) The information given from time to time by the Obligor as to each item of Collateral
pledged by it hereunder is true, accurate and complete in all material respects;



     (C) The Obligors own Qualifying Collateral with a Lendable Collateral Value at least equal to
the Collateral Maintenance Level;



     (D) The lien of the Residential First Mortgage Collateral, Commercial Mortgage Collateral and
Multifamily Mortgage Collateral on the real property securing such Collateral is a first, prior and
perfected lien under applicable law;



     (E) The Obligor has not conveyed or otherwise created, and there does not otherwise exist, any
participation interest or other direct, indirect, legal, or beneficial interest, lien or
encumbrance in any Collateral on the part of any Person other than the Bank and the Obligor,



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except that the Obligor may sell or otherwise dispose of Collateral not necessary to meet the
requirements of Section 3.03(A), and not otherwise reported to the Bank as Qualifying Collateral
for purposes of meeting the requirements of Section 3.03(A); provided, however, any sale of
Collateral to a person controlling, controlled by or in common control with any Obligor, except to
any other Obligor that also pledges such Collateral to the Bank, must be at fair market value and
on terms and conditions that are fair and reasonable to such Obligor;




     (F) To the best knowledge of the Obligor, after reasonable inquiry, no account debtor or other
obligor owing any obligation to the Obligor with respect to any Qualifying Collateral necessary to
meet the collateral maintenance requirement in Section 3.03(A) hereof, or otherwise reported to the
Bank as Qualifying Collateral for purposes of meeting the requirements of Section 3.03(A), has or
shall have any defenses, offsetting claims, or other rights affecting the right of the Obligor or
the Bank to enforce the terms of such Qualifying Collateral, and no defaults (or conditions that,
with the passage of time or the giving of notice or both, would constitute a default) exist under
any such Qualifying Collateral; provided, however, that promptly upon discovery by the Bank
or the Obligor of any such defenses, offsetting claims, rights affecting the rights of the Obligor
or the Bank to enforce the terms of such Qualifying Collateral, or any defaults (or conditions
that, with the passage of time or the giving of notice or both, would constitute a default), in
addition to any other remedies of the Bank under this Agreement, the Obligor shall replace such
items of Collateral not in compliance with the provisions of this Section 3.02(F) with an equal
amount of Qualifying Collateral meeting all requirements of this Agreement and the Credit and
Collateral Policy; and



     (G) To the best knowledge of the Obligor, after reasonable inquiry, no part of any real
property or interest in real property that is included within the Collateral contains or is subject
to the effects of toxic or hazardous materials or other hazardous substances (including those
defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, 42 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 reasonably
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.



     Section 3.03 Collateral Maintenance Requirement.



     (A) The Obligors shall at all times maintain Qualifying Collateral which has a Lendable
Collateral Value that is at least equal to the Collateral Maintenance Level. At any time the
Obligors fail to maintain such Qualifying Collateral, as reasonably determined by the Bank, in
addition to any other remedies of the Bank under this Agreement, the Obligors agree to assign,
transfer and pledge, and grant to the Bank a security interest in, such additional alliounts of
Collateral as may be deemed necessary by the Bank for its protection in accordance with Section
10(d) of the Act.



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     (B) All documents and other matters pertaining to the Qualifying Collateral necessary to meet
the requirements of Section 3.03(A), or otherwise reported to the Bank as Qualifying Collateral for
purposes of meeting the requirements of Section 3.03(A), must be satisfactory to the Bank and, if
not, the Bank may refuse to accept such Qualifying Collateral or may assign such Qualifying
Collateral a Lendable Collateral Value less than the Lendable Collateral Value otherwise applicable
under the Credit and Collateral Policy.



     (C) No Obligor shall assign, pledge, transfer, create any lien, encumbrance or security
interest in, sell, or otherwise dispose of any Collateral; provided, however, (i) an
Obligor may sell or otherwise dispose of Collateral not necessary to meet the requirements of
Section 3.03(A) and not otherwise reported to the Bank as Qualifying Collateral for purposes of
meeting the requirements of Section 3.03(A), so long as (A) no Event of Default has occurred and is
continuing and (B) any sale of Collateral to a person controlling, controlled by or in common
control with any Obligor, except to any other Obligor that also pledges such Collateral to the
Bank, is made at fair market value and on terms and conditions that are fair and reasonable to such
Obligor, and (ii) upon the written request of the Obligors, the Bank will agree to release such
Collateral as shall be mutually agreeable to the Bank and the Obligors so long as such Collateral
to be released is not necessary to meet the requirements of Section 3.03(A) and not otherwise
reported to the Bank as Qualifying Collateral for purposes of meeting the requirements of Section
3.03(A).



     Section 3.04 Holding of Collateral.



     (A) Each Obligor shall hold any Collateral in its possession in such manner as reasonably
identifies the security interest of the Bank and as the Bank shall further direct.



     (B) Except for Collateral required to be delivered to the Bank or its custodian as required
hereunder, Collateral shall be held by each Obligor in its possession (except as otherwise provided
herein) in trust for the benefit of, and subject to the direction, and control of, the Bank and
shall be physically safeguarded by the Obligor in accordance with reasonable commercial procedures.
To the extent that any Obligor enters into any custodial arrangement with respect to the
Collateral, the Obligor shall notify the Bank in writing of such arrangement, shall provide the
Bank with copies of all agreements evidencing such arrangement, which shall be satisfactory to the
Bank in all respects, and shall cause such agreements to provide that the custodian holds the
Collateral for the benefit of the Bank and no other person and that the custodian shall accept
instructions from the Bank with respect to the Collateral. Without limitation of the foregoing,
each Obligor shall take all action necessary or desirable to protect and preserve the Collateral
and the Bank’s interest therein, including, the collection of payments under all mortgages and
under any insurance, assuring that all mortgages are serviced in accordance with the standards of
a reasonable and prudent mortgagee and compliance with all requirements with respect to the
Collateral set forth in the Credit and Collateral Policy.



     (C) Any Collateral which is a security or other investment property shall be delivered to the
Bank, together with such assignments, powers and other documents as the Bank shall



11









 




require in connection with its perfected, first-priority security interest in such Collateral.
With respect to any uncertificated securities pledged to the Bank as Collateral hereunder, the
delivery requirements contained in this Agreement shall be satisfied by the transfer of a
perfected, first-priority security interest in such securities to the Bank, such transfer to be
effected in such manner and to be evidenced by such documents as shall be reasonably specified by
the Bank.




     Section 3.05 Delivery of Collateral.



     (A) Promptly upon the Bank’s written request, or as provided in the Credit and Collateral
Policy, the Obligors shall deliver to the Bank, or to a custodian designated by the Bank, such
Qualifying Collateral as may be necessary so that the Lendable Collateral Value of Qualifying
Collateral held by the Bank, or such custodian, meets or exceeds the Collateral Maintenance Level
at all times. Collateral delivered to the Bank shall be endorsed and assigned, as appropriate, in
such form as reasonably specified by the Bank and together with such information with respect to
such Collateral as the Bank shall request.



     (B) Each Obligor agrees to pay to the Bank such reasonable fees and charges as may be assessed
by the Bank to cover the Bank’s overhead and other costs relating to the receipt, holding and
redelivery of Collateral and other reasonable expenses, disbursements and advances incurred or made
by the Bank in connection therewith (including the reasonable compensation and the expenses and
disbursements of any custodian, consultant or appraiser that may be appointed by the Bank
hereunder, and the agents and legal counsel of the Bank and of such custodian).



     Section 3.06 Collateral Reports; Access to Collateral.



     (A) At the times provided in the Credit and Collateral Policy, and promptly after any
additional requests by the Bank, each Obligor shall deliver to the Bank such information, reports,
verification reviews and schedules with respect to the Collateral, the Qualifying Collateral and
compliance with this Agreement and the Credit and Collateral Policy as provided in the Credit and
Collateral Policy, or as the Bank shall request, all in form and substance as prescribed by the
Bank.



     (B) Each Obligor shall provide the Bank with such financial reports and other information
relating to such Obligor’s financial condition as the Bank may reasonably request.



     (C) Each Obligor shall give the Bank, its agents and representatives access at reasonable
times and locations to the Collateral, and to such Obligor’s books and records of account relating
to such Collateral, for the purpose of the Bank or its agents and representatives examining,
verifying or reconciling the Collateral and such Obligor’s reports to the Bank thereon. At the
Bank’s request, the Obligors shall make any or all documents and information pertaining to the
Collateral available to the Bank, its agents and representatives at reasonable times and locations
for their inspection and approval. Each



12









 




Obligor shall make adequate working facilities available to the Bank, its agents and
representatives for purposes of such verifications and reviews. Reasonable fees and charges may be
assessed to the Obligors by the Bank to cover overhead and other costs relating to such
verifications and reviews, including, any costs and expenses of third parties engaged by the Bank
for such purposes.




     (D) If any Obligor becomes aware or has reason to believe that the Lendable Collateral Value
of such Obligors’ Qualifying Collateral has fallen below the Collateral Maintenance Level, that a
contingency exists which with the lapse of time could result in such Obligors’ failure to meet the
Collateral Maintenance Level, or any event has occurred which could reasonably be expected to have
a Material Adverse Effect on such Obligor, such Obligor shall immediately notify the Bank.



     (E) Each Obligor shall notify the Bank prior to (i) any change in such Obligor’s name, charter
or other such similar organizational documents filed with any governmental entity, jurisdiction of
organization, or form of organization and (ii) any event that could result in a change in such
Obligor’s “location” as defined in the Uniform Commercial Code.



     Section 3.07 Additional Documentation; Further Assurances.



     (A) Each Obligor shall, or the Bank may, in lieu of the Obligor, make, execute, record and
deliver such agreements, financing statements, notices, assignments, listings, powers, and other
documents with respect to the Collateral and the Bank’s first-priority security interest therein
and in such form as the Bank may reasonably require. Each Obligor shall, upon request of the Bank,
immediately take such actions as the Bank shall deem necessary or appropriate to perfect the Bank’s
first-priority security interest in the Collateral or otherwise to obtain, preserve, protect,
enforce or collect the Collateral or the proceeds thereof.



     (B) The Bank may from time to time hereafter require any Obligor to provide representations,
warranties, and undertakings, in addition to those contained herein, reasonably related to the
securing, perfecting, maintaining or enforcing of the Bank’s rights and interests in the
Collateral.



     Section 3.08 Bank’s Responsibilities as to Collateral. The Bank’s duty as to the Collateral shall be solely to use reasonable care in the custody and
preservation of the Collateral in its possession, which shall not include any steps necessary to
preserve rights against prior parties nor the duty to send notices, perform services, or take any
action in connection with the management of the Collateral. The Bank shall not have any
responsibility or liability for the form, sufficiency, correctness, genuineness or legal effect of
any instrument or document constituting a part of the Collateral, or any signature thereon or the
description or misdescription, or value of property represented, or purported to be represented, by
any such document or instrument. Each Obligor agrees that any and all Collateral may be removed by
the Bank from the state or location where situated, and may be subsequently dealt with by the Bank
as provided in this Agreement.



13









 





     Section 3.09 Bank’s Rights as to Collateral; Power of Attorney. At any time or times, at the expense of the Obligors, the Bank may in its discretion, before the
occurrence of an Event of Default as defined in Section 5.01 hereof in the case of (A), (C), (E),
(F) or (H) below, or after the occurrence of an Event of Default in the case of (B), (D), (G) or
(I) below, in its own name or in the name of its nominee or of any Obligor, do any or all things
and take any and all actions that are pertinent to the protection of the Bank’s interest hereunder
and are lawful under applicable law, so long as such rights are exercised in good faith and in a
commercially reasonable manner, including, but not limited to, the following:



     (A) Terminate any waiver, consent or forbearance given in connection with this Agreement;
provided, however, any Event of Default which may result as a consequence of the
termination of any such waiver, consent or forbearance shall not be deemed to have occurred unless
such Event of Default has not been cured within three days following the termination of such
waiver, consent or forbearance;



     (B) Notify obligors on any Collateral to make payments or render performance thereon directly
to the Bank;



     (C) Endorse any Collateral in any Obligor’s name;



     (D) Enter into any extension, compromise, settlement, or other agreement relating to or
affecting any Collateral;



     (E) Take any action any Obligor is required to take or which is otherwise reasonably necessary
to file a financing statement, take possession of Collateral as described in Section 3.05(A) of
this Agreement, obtain control of Collateral or otherwise perfect a security interest in any or all
of the Collateral.



     (F) Take any action any Obligor is permitted to take in connection with the Collateral that is
pertinent to the protection of the Bank’s interest hereunder, to the same extent as if the Bank
were the originator of the Collateral;



     (G) Take control of any funds or other proceeds generated by the Collateral and use the same
to reduce Liabilities as they become due;



     (H) Cause the Government and Agency Securities Collateral and the Other Securities Collateral
to be transferred to its name or the name of its nominee; and



     (I) Cause the Collateral to be transferred to its name or the name of its nominee.


Each Obligor hereby appoints the Bank as its true and lawful attorney, for and on behalf of the
Obligor and in its name, place and stead, to prepare, execute and record endorsements and
assignments to the Bank of all or any item of Collateral, giving or granting to the Bank, as such
attorney, full power and authority to do or perform every lawful act necessary or proper in
connection therewith as fully as the Obligor might or could do. Each Obligor hereby ratifies and
confirms all that the Bank shall lawfully do or cause to be done by virtue






14









 







of this special power of attorney. This special power of attorney is granted for a period
commencing on the date hereof and continuing until the discharge of all Liabilities and all
obligations of the Obligors hereunder regardless of any default by any Obligor, is coupled with an
interest, and is irrevocable for the period granted. This special power of attorney may be
exercised only in accordance with the terms and provisions of this Agreement.




     Section 3.10 Proceeds of Collateral. Each Obligor, as the Bank’s agent, shall collect all payments when due on all Collateral. If
the Bank so requires, after the occurrence of an Event of Default, each Obligor shall hold such
collections separate from its other monies in one or more designated cash collateral accounts
maintained at the Bank and apply them to the reduction of Liabilities as they become due;
otherwise, the Bank consents to the Obligors’ use and disposition of all such collections.



ARTICLE IV




ADDITIONAL REPRESENTATIONS,

WARRANTIES AND COVENANTS



     Section 4.01 General Representations and Warranties by the Obligors. Each Obligor hereby represents and warrants that, as of the date hereof, the date of each
Advance, Credit Product, Derivative Transaction or Other Product, and the date of delivery of each
collateral report required under Section 3.07(A) hereof:



     (A) Such Obligor is not, and neither the execution of nor the performance of any of the
transactions or obligations of such Obligor under this Agreement shall, with the passage of time,
the giving of notice or otherwise, cause such Obligor to be: (i) in violation of its charter or
articles of incorporation, by-laws, the Act or the Regulations, any other law or administrative
regulation, or any court decree, which could reasonably be expected to have a Material Adverse
Effect on such Obligor; or (ii) in default under or in breach of any indenture, contract or other
instrument or agreement to which such Obligor is a party or by which it or any of its property is
bound, which default or breach could reasonably be expected to have a Material Adverse Effect on
such Obligor;



     (B) Such Obligor has full corporate power and authority and has received all corporate and
governmental authorizations and approvals (including those required under the Act and the
Regulations) as may be required to enter into and perform its obligations under this Agreement and
to obtain any Derivative Transaction or Other Product, and the Borrower has full corporate power
and authority and has received all corporate and governmental authorizations and approvals
(including those required under the Act and the Regulations) as may be required to borrow each
Advance and to obtain each Credit Product, Derivative Transaction and Other Product;



     (C) The information given by such Obligor herein or in any Application, Confirmation or
Supplemental Documentation, or in any other written statement made in



15









 




connection with transactions contemplated thereunder, is true, accurate and complete in all
material respects;




     (D) The name, location (as defined in the Uniform Commercial Code) and corporate form of such
Obligor is, and for the lesser of its entity existence or the four months prior to the date of this
Agreement has been, the same as set forth in the opening paragraph of this Agreement or in a
Joinder Agreement;



     (E) All financial statements concerning such Obligor which have been furnished to the Bank or
will hereafter be furnished to the Bank pursuant to this Agreement or any Joinder Agreement, have
been or will be prepared in accordance with GAAP consistently applied (except as disclosed therein)
and do or will present fairly the financial condition of the entities covered thereby as at the
dates thereof and the results of their operations for the periods then ended, subject to, in the
case of unaudited financial statements, the absence of footnotes and year-end adjustments;



     (F) Since the date of the most recent audited financial statements of such Obligor referred to
in Section 4.01(E) above, there have been no events or changes in facts or circumstances affecting
such Obligor which individually or in the aggregate have had or could reasonably be expected to
have a Material Adverse Effect on such Obligor;



     (G) (i) Such Obligor is not the subject of any review or audit by any governmental or
regulatory investigation concerning the violation or possible violation of any law (except for
routine examinations in connection with which no violation or possible violation has been
identified by such governmental or regulatory entity) which could reasonably be expected to result
in any Material Adverse Effect on such Obligor and (ii) there are no judgments outstanding against
such Obligor or affecting any property of such Obligor, nor is there any action, charge, claim,
demand, suit, proceeding, petition, governmental investigation or arbitration now pending or, to
the best knowledge of such Obligor after due inquiry, threatened against or affecting such Obligor
or any property of such Obligor which could reasonably be expected to result in any Material
Adverse Effect on such Obligor;



     (H) To such Obligor’s best knowledge, after reasonable investigation, none of the proceeds of
any Advance (or other credit extension hereunder) will be used in connection with any “reportable
transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) or in connection with
any “potentially abusive tax shelter” within the meaning of Section 6112(b) of the Internal Revenue
Code of 1986, as amended; and



     (I) Each Borrowing Document is and will remain (notwithstanding any amendment thereto
occurring after the date of this Agreement) the legally valid and binding obligation of such
Obligor, enforceable in accordance with its terms.



     Section 4.02 General Covenants by the Obligors. Until the termination of this Agreement and the indefeasible satisfaction in full of all of the
Liabilities:



16









 





     (A) To the extent that the Borrower relies upon the Lendable Collateral Value of Qualifying
Collateral owned by an Affiliate in obtaining or maintaining any Advance (or other extension of
credit under the Borrowing Documents), the Borrower will use, directly or indirectly, all of the
proceeds of such Advance (or other extension of credit) in a manner that shall result in such
Affiliate receiving valuable consideration, fair value, fair consideration and reasonable
equivalent value in exchange for the pledging of such Qualifying Collateral to the Bank; and



     (B) Each Obligor will (a) comply with (i) the requirements of all applicable laws, rules,
regulations and orders of any governmental authority (including, laws, rules, regulations and
orders relating to taxes, employer and employee contributions, securities, employee retirement and
welfare benefits, environmental protection matters, employee health and safety and credit
protection, anti-predatory and fair lending) as now in effect and which may be imposed in the
future in all jurisdictions in which such Obligor is now doing business or may hereafter be doing
business and (ii) the obligations, covenants and conditions contained in all binding contracts of
such Obligor, as applicable, other than those laws, rules, regulations, orders and provisions of
such contracts the noncompliance with which could not be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, and (b) maintain or obtain all
licenses, qualifications and permits now held or hereafter required to be held by such Obligor, for
which the loss, suspension, revocation or failure to obtain or renew, could reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect. This subsection shall
not preclude any Obligor from contesting any taxes or other payments, if they are being diligently
contested in good faith in a manner which stays enforcement thereof and if appropriate expense
provisions have been recorded in conformity with GAAP.



ARTICLE V




DEFAULT; REMEDIES



     Section 5.01 Events of Default. Each of the following events shall constitute an Event of Default hereunder:



     (A) Failure of any Obligor to pay when due any interest on or principal of any Liabilities; or



     (B) Failure of any Obligor to perform any promise or obligation or to satisfy any condition or
liability contained herein, or in any Application, Confirmation or Supplemental Documentation, or
the occurrence of a default or an event of default under any Supplemental Documentation; or



     (C) Any representation, statement, covenant or warranty made or furnished in any manner to the
Bank by or on behalf of any Obligor in connection with this Agreement or any Application,
Confirmation, Supplemental Documentation, Liabilities or Collateral was false in any material
respect when made or furnished; or



17









 





     (D) The issuance of any tax, levy, seizure, attachment, garnishment, levy of execution, or
other process with respect to the Collateral which has not been stayed within 60 days after the
issuance thereof; or



     (E) Any suspension of payment by any Obligor to any creditor of sums due under or the
occurrence of any event which results in another creditor having the right to accelerate the
maturity of any indebtedness of any Obligor under any security agreement, indenture, loan
agreement, or comparable undertaking which could reasonably be expected to have a Material Adverse
Effect on any Obligor; or



     (F) Appointment of a conservator, receiver, or similar official for any Obligor or any
subsidiary of any Obligor, of any Obligor’s property, entry of a judgment or decree adjudicating
any Obligor or any subsidiary of any Obligor insolvent or bankrupt or an assignment by any Obligor
or any subsidiary of any Obligor for benefit of creditors; or



     (G) Sale by any Obligor of a material part of such Obligor’s assets or the taking of any other
action by any Obligor to liquidate or dissolve; or



     (H) Termination for any reason of the Borrower’s membership in the Bank, failure of the
Borrower to comply with the stock purchase requirements of the Bank in effect from time to time, or
the Borrower’s ceasing to be eligible to become a member of the Bank or any Obligor ceasing to be
eligible to pledge Collateral or support the obligations of the Borrower hereunder under the Act,
the Regulations or the Credit and Collateral Policy; or



     (I) Merger, consolidation or other combination of any Obligor with an entity that is not a
member of the Bank if the nonmember entity is the surviving entity; or



     (J) Any Obligor or any of its respective directors, executive officers or senior officers is
criminally indicted or convicted of or under a felony or a crime, each of which involves fraud
against or in relation to such Obligor, and such indictment or conviction could reasonably be
expected to have a Material Adverse Effect on such Obligor; or



     (K) Any event which could reasonably be expected to have a Material Adverse Effect on any
Obligor.


For
purposes of Section 5.01(G), “material part” means a sale of assets (in one or a series of
transactions) by any Obligor, other than in the ordinary course of such Obligor’s business, in any
given fiscal year, the book value of which exceeds an amount equal to such Obligor’s TIER 1
capital, or if TIER 1 capital is not available, total capital as determined by such Obligor’s, or
the Borrower’s, primary regulator, at the close of the immediately preceding fiscal year.




     Section 5.02 Acceleration; Other Remedies. Upon the occurrence of an Event of Default, in addition to any other remedies provided herein,
in any Supplemental Documentation or at law or in equity, the Bank may at its option, by a notice
to the Borrower, declare all or any part(s) of the Liabilities and accrued interest thereon,
including any



18









 




prepayment fees or charges which are applicable thereto, to be immediately due and payable, without
presentment, demand, protest, or any further notice. Furthermore, upon the occurrence of an Event
of Default, the Bank shall have all of the rights and remedies provided by applicable law, which
shall include, but not be limited to, all of the remedies of a secured party under the Uniform
Commercial Code as in effect in the State of Georgia. In addition, the Bank may take immediate
possession of any of the Collateral or any part thereof wherever the same may he found. The Bank
may sell, assign and deliver the Collateral or any part thereof at public or private sale for such
price as the Bank deems appropriate without any liability for any loss due to decrease in the
market value of the Collateral during the period held. The Bank shall have the right to purchase
all or part of the Collateral at such sale. If the Collateral includes insurance or securities
which will be redeemed by the issuer upon surrender, or any accounts or deposits in the possession
of the Bank, the Bank may realize upon such Collateral without notice to any Obligor. If any
notification of intended disposition of any of the Collateral is required by applicable law, such
notification shall be deemed reasonable and properly given if given as provided by applicable law
or in accordance with Section 6.06 hereof at least ten days before any such disposition. The
proceeds of any sale shall be applied in the order that the Bank, in its sole discretion, may
choose, subject to applicable law. Each Obligor agrees that the Bank may exercise any and all of
its rights of setoff upon the occurrence of an Event of Default. Notwithstanding any other
provision hereof, upon the occurrence of any Event of Default at any time when all or part of the
Liabilities shall be the subject of a guarantee by a third party for the Bank’s benefit, and there
shall be other outstanding obligations of any Obligor to the Bank that are not so guaranteed, but
that are secured by the Collateral, then any sums realized by the Bank from the Collateral, or from
any other collateral pledged or furnished to the Bank by any Obligor under any other agreement,
shall be applied first to the satisfaction of such other nonguaranteed obligations and then to such
Obligor’s guaranteed obligations hereunder. Each Obligor agrees to pay all the costs and expenses
of the Bank in the collection of the Liabilities and enforcement of the Bank’s rights and remedies
in case of default, including, reasonable attorneys’ fees. The Bank shall, to the extent required
by law, apply any surplus, after (i) payment of the Liabilities, (ii) provision for repayment to
the Bank of any amounts to be paid or advanced under Other Credit Products, and (iii) payment of
all costs of collection and enforcement, to the claims of person(s) legally entitled thereto, with
any remaining surplus paid to the Borrower. Each Obligor shall be liable to the Bank for any
deficiency remaining.




     Section 5.03 Certain Provisions as to Sale of Collateral. The Bank may, from time to time after the occurrence of an Event of Default, attempt to sell
certain Collateral by means of a private placement. In so doing, the Bank may restrict the bidders
and prospective purchasers to those who will represent and agree that they are purchasing for
investment only and not for distribution or otherwise impose restrictions deemed appropriate by the
Bank for the purpose of complying with the requirements of applicable securities laws. The Bank
may solicit offers to buy such Collateral, for cash or otherwise, from a limited number of
investors deemed by the Bank to be responsible parties who might be interested in purchasing such
Collateral. If the Bank solicits offers from not less than three such investors, then the



19









 




acceptance by the Bank of the highest offer obtained therefrom (whether or not three offers are
obtained) shall be deemed to be a commercially reasonable method of disposing of the Collateral.




ARTICLE VI




MISCELLANEOUS



     Section 6.01 Changes to Credit and Collateral Policy. The Bank reserves the right to amend, supplement, restate or otherwise modify the Credit and
Collateral Policy (each, a “Policy
Modification”) at any time, in its sole discretion, without the
consent of any Obligor, and each Obligor hereby (i) acknowledges and agrees that this Agreement
shall be deemed to have been amended by each such Policy Modification, (ii) acknowledges and agrees
that each such Policy Modification shall apply to all Advances, Credit Products, Derivative
Transactions and Other Products (whether outstanding on the date of such Policy Modification or
issued after the date thereof) and (iii) agrees to be bound by each and every Policy Modification
occurring on, prior to, or after the date of this Agreement. Each Policy Modification shall become
effective immediately upon adoption by the Bank; provided, however, no Event of
Default shall occur as a result of any Policy Modification until 90 days after the effective date
of such Policy Modification. The Bank shall provide notice of any Policy Modification in writing,
which may include by electronic mail, to the Borrower no later than 30 days after the effective
date of such Policy Modification; provided, however, such notice shall be deemed effective
when given by the Bank, whether or not actually received by the Borrower. Notwithstanding the
provisions of this section, the Bank shall not amend, supplement, restate or otherwise modify the
terms and conditions of any Advance, Credit Product, Derivative Transaction or Other Product
specified in a Confirmation, without the consent of the Borrower.



     Section 6.02 Assignment. Each Obligor hereby gives the Bank the full right, power and authority to pledge or assign to
any party all or part of the Liabilities, together with all or any part of the Collateral, as
security for consolidated Federal Home Loan Bank obligations issued pursuant to the provisions of
the Act or for any other purpose authorized by the Act, the Regulations or the Federal Housing
Finance Board. In case of any such pledge or assignment, the Bank shall have no further
responsibility with respect to Collateral transferred to the pledgee or assignee. The Obligors may
not (whether voluntarily, involuntarily, by operation of law or otherwise) assign or transfer any
of their rights or obligations hereunder or with respect to any Advance, Credit Product, Derivative
Transaction or Other Product without the express prior written consent of the Bank. The Bank may
at any time, upon notice to the Borrower and subject to applicable law, sell, assign, grant
participations in, or otherwise transfer to any other person, firm or corporation, including
another Federal Home Loan Bank, all or part of the Liabilities outstanding hereunder. Each Obligor
hereby acknowledges and agrees that any such disposition shall give rise to a direct obligation of
the Obligor to such assignee, participant or transferee. Each Obligor hereby authorizes the Bank
and each assignee, participant or transferee, in case of default by any Obligor hereunder, to
proceed directly, by right of setoff, banker’s lien, or otherwise, against






20









 







any assets of any Obligor which may at the time of such default be in the respective hands of the
Bank or any such assignee, participant or transferee. Each Obligor further agrees that the Bank
may furnish any information pertaining to any Obligor which is in the possession of the Bank to any
prospective assignee, participant or transferee to assist it in evaluating such assignment,
participation or transfer provided that any non-public information reasonably designated in writing
to the Bank by any Obligor as constituting non-public information shall be furnished to such
prospective assignee, participant or transferee on a confidential basis. Nothing contained herein
shall be deemed to grant to any third party any rights hereunder.




     Section 6.03 Discretion of the Bank to Grant or Deny Advances. Nothing contained herein or in any documents describing the Bank’s credit program and credit
policies, including the Credit and Collateral Policy, shall be construed as an agreement or
commitment on the part of the Bank to grant Advances or enter into Credit Products, Derivative
Transactions or Other Products. No Obligor, except the Borrower, shall have any right to apply to
the Bank for Advances or Credit Products. The right and power of the Bank in its discretion to
either grant or deny any Advance, Credit Product, Derivative Transaction or Other Product requested
hereunder is hereby expressly reserved. The determination by the Bank of Lendable Collateral Value
and the Collateral Maintenance Level shall not constitute a determination by the Bank that the
Borrower may obtain Advances, Credit Products, Derivative Transactions or Other Products in amounts
up to such Lendable Collateral Value and Collateral Maintenance Level.



     Section 6.04 Amendment; Waivers. No modification, amendment or waiver of any provision of this Agreement (other than the
provisions of the Credit and Collateral Policy incorporated by reference herein) or consent to any
departure therefrom shall be effective unless in a writing executed by a responsible officer of the
party against whom such change is asserted and shall be effective only in the specific instance and
for the purpose of which given. No notice to or demand on any Obligor in any case shall entitle
any Obligor to any other or further notice or demand in the same, or similar or other
circumstances. Any forbearance, failure or delay by the Bank in exercising any right, power or
remedy hereunder shall not be deemed to be a waiver thereof, and any single or partial exercise by
the Bank of any right, power or remedy hereunder shall not preclude the further exercise thereof.
Every right, power and remedy of the Bank shall continue in full force and effect until
specifically waived by the Bank in writing.



     Section 6.05 Consent to Jurisdiction. In any action or proceeding brought by the Bank or any Obligor in order to enforce any right or
remedy under this Agreement, the parties hereby consent to, and agree that they will submit to, the
nonexclusive jurisdiction of the United States District Court for the Northern District of Georgia
or, if such action or proceeding may not be brought in Federal court, the jurisdiction of the
courts of the State of Georgia located in the City of Atlanta.



     Section 6.06 Notices. Except as provided in the last sentence of this Section, any written notice, advice, request,
consent or direction given, made or withdrawn pursuant to this Agreement shall be in writing, and
shall be given by first class mail, postage prepaid, by



21









 




telecopy or other facsimile transmission, or by private courier or delivery service. All non-oral
notices shall be deemed given when actually received at the principal office of the Bank or when
actually given in the case of notices by the Bank to the Borrower (for all Obligors). All notices
shall be designated to the attention of the president and chief executive officer of the Bank and
to an office or section of the Borrower if the Borrower has made a request for the notice to be so
addressed. Any notice by the Bank to the Borrower pursuant to Section 3.06 hereof may be oral and
shall be deemed to have been duly given to and received by the Borrower at the time of the oral
communication.




     Section 6.07 Signatures of Obligors. For purposes of this Agreement, documents shall be deemed signed by each Obligor when a
signature (electronic or manual) of an authorized signatory or an authorized facsimile thereof
appears on the document. The Bank may rely on any signature (electronic or manual) or facsimile
thereof which reasonably appears to the Bank to be the signature of an authorized person, including
signatures appearing on documents transmitted electronically to and reproduced mechanically at the
Bank. The Secretary or an Assistant Secretary of each Obligor shall from time to time certify to
the Bank on forms provided by the Bank the names and specimen signatures of the persons authorized
to apply on behalf of the Borrower to the Bank for Advances and commitments for Advances and
otherwise act for and on behalf of the Obligors in accordance with this Agreement. The Obligors
shall promptly notify the Bank of any changes to such certifications, and until receipt of such
notice, the Bank shall be authorized to rely on the authorizations in such current certifications.
Such certifications are incorporated herein and made a part of this Agreement and shall continue in
effect until expressly revoked or amended in writing by the Obligors, notwithstanding that
subsequent certifications may authorize additional persons to act for and on behalf of the
Obligors.



     Section 6.08 Applicable Law; Severability. In addition to the terms and conditions specifically set forth herein and in any Application,
Confirmation or Supplemental Documentation, this Agreement and all Advances, Credit Products,
Derivative Transactions and Other Products shall be governed by the statutory and common law of the
United States and, to the extent Federal law incorporates or defers to state law, the laws
(exclusive of the choice of law provisions) of the State of Georgia. Notwithstanding the
foregoing, the Uniform Commercial Code as in effect in the State of Georgia shall be deemed
applicable to this Agreement and any Application, Confirmation and Supplemental Documentation and
to any Advance, Credit Product, Derivative Transaction or Other Product and shall govern the
attachment and perfection of any security interest granted hereunder or thereunder. In the event
that any portion of this Agreement, or any Application, Confirmation or Supplemental Documentation,
conflicts with applicable law, such conflict shall not affect other provisions of this Agreement or
such Application, Confirmation or Supplemental Documentation, which may be given effect without the
conflicting provision, and to this end the provisions of this Agreement and any Application,
Confirmation and Supplemental Documentation are declared to be severable.



     Section 6.09 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and permitted
assigns of the Obligors and the Bank.



22









 





     Section 6.10 Entire Agreement. This Agreement, together with any Confirmation or Supplemental Documentation, and any amendments
or addenda thereto executed by the Bank and the Obligors, embody the entire agreement and
understanding between the parties hereto relating to the subject matter hereof and supersedes all
prior agreements between such parties that relate to such subject matter. If, prior to the date of
this Agreement, the Borrower and the Bank have entered into an Agreement for Advances and Security
Agreement with Blanket Floating Lien (as amended), an Advances, Specific Collateral Pledge and
Security Agreement or an Advances and Security Agreement (each, a “Prior Agreement”), then this
Agreement shall amend and restate the Prior Agreement in its entirety as the date hereof.



     Section 6.11 Attorneys’ Fees. Each Obligor agrees to pay all charges and expenses incurred by Bank (including reasonable
attorneys’ fees and expenses) in connection with the administration of the Borrowing Documents, any
investigation by Bank in respect of any Borrowing Document, the enforcement, protection or
preservation of any right or claim of Bank, the termination of this Agreement or any other
Borrowing Document, the termination of any liens of Bank on the Collateral, or the collection of
any amounts due under the Borrowing Documents.



     Section 6.12 Indemnification of the Bank. Each Obligor hereby indemnifies and agrees to defend (with counsel acceptable to the Bank) and
hold harmless the Bank and each of its directors, officers, agents and employees (each, an
“Indemnitee”) from and against any liability, loss, cost or expense (including reasonable
attorneys’ fees and expenses) incurred in connection with any claim, damage, suit, arbitration,
action, proceeding, investigation or refiling settlement discussion or negotiation, whenever taking
place, and suffered by any one or more of the Indemnitees (collectively, “Losses”) or in which any
one or more of the Indemnitees may ever be or become involved (whether as a party, witness or
otherwise), in connection with, or in any way relating to, any Liability, this Agreement, any
Borrowing Document, any Advance, any Credit Product, any Derivative Transaction, or any Other
Product and any Loss (a) arising from any Obligor’s failure to observe, perform or discharge any of
its covenants, obligations, agreements or duties under this Agreement or any other Borrowing
Document, (b) arising from the breach of any of the representations or warranties contained in any
Borrowing Document, (c) relating to claims of any Person with respect to any Collateral, or (d)
arising from any Obligor’s failure to comply with any federal, state, or local statute, regulation,
ordinance or other provision of law; provided, an Indemnitee shall not be indemnified for Losses to
the extent they result solely from the gross negligence or willful misconduct of such Indemnitee.
Notwithstanding any contrary provision in any Borrowing Document, obligations of each Obligor under
this Section 6.12 shall survive the payment in full of the Liabilities and the termination of this
Agreement.



[Signatures appear on following page.]







23









 








     IN WITNESS WHEREOF, Borrower and Bank have caused this Agreement to be signed in their names
by their duly authorized officers as of the date first above mentioned.



EVERBANK





			
	By:	 	/s/ Jeffrey L. Smiley 
Name: Jeffrey L. Smiley
Title: SVP, Treasurer






			
	By:	 	/s/ Brian J. Bleick 
Name: Brian J. Bleick
Title: Bank Funding Manager





FEDERAL HOME LOAN BANK OF ATLANTA





			
	By:	 	/s/ Kent Scott 
Name: Kent Scott
Title: Vice President






			
	By:	 	/s/ David Courson 
Name: David Courson
Title: Vice President







24









 








FEDERAL HOME LOAN BANK OF ATLANTA



BORROWER ACKNOWLEDGEMENT

AND NOTARIZATION



	 	 	 	 	 

	STATE OF

	 	Florida	 	 
	 

	 	 	 	 
	 

	 	 	 	} SS
	County of

	 	Duval	 	 
	 

	 	 	 	 





     On this 20th day of October, 2008, before me, personally came Jeffrey L. Smiley and
Brian Bleick, to me known who being by me duly sworn, did depose and state that they are
the SVP and Money Desk Manager of EverBank (the “Borrower”); and that they are signing
their names thereto in my presence by order of the Board of Directors or other governing
body of the Borrower and that said Jeffrey L. Smiley and Brian Bleick acknowledge the
execution of said instrument to be voluntary act and deed of the Borrower.



LoRaine L. Davidson
 

     Notary Public Signature




Notary Public in and

for the State of Florida




(NOTARY PUBLIC SEAL)




My commission expires 10/04/09






 









 








EXHIBIT A



Form of Affiliate Joinder Agreement



          THIS JOINDER AGREEMENT (the “Agreement”), dated as of [Insert Date], is among [Insert Name of
Affiliate], a [Insert Type of Organization and Jurisdiction of Organization], having its principal
place of business at [Insert Address] (“Affiliate”), [Insert Name of Borrower] (“Borrower”) and the
Federal Home Loan Bank of Atlanta (“Bank”). The Affiliate wishes to provide security and credit
support to the Borrower under the Advances and Security Agreement dated as of [Insert Date of
Agreement], between the Borrower and the Bank (the “Advances and Security Agreement”). The Bank
has agreed to accept such security and credit support of Affiliate subject to the terms and
conditions of this Agreement. All of the defined terms in the Advances and Security Agreement are
incorporated herein by reference.




          Accordingly, the Borrower and the Affiliate hereby agree as follows with the Bank:





	1.	 	The Affiliate hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Affiliate shall be deemed to be a party to the Advances and
Security Agreement and an “Obligor” as provided therein and shall have all of the
obligations of an Obligor thereunder as if it had executed the Advances and Security
Agreement originally, provided, however, the Affiliate may not apply to the Bank for
direct Advances, Credit Products, Derivative Transactions or Other Products. The
Affiliate hereby ratifies, as of the date hereof, and agrees to be bound by, all of
the terms, provisions and conditions contained in the Advances and Security Agreement,
including, all of the representations, warranties and affirmative and negative
covenants of an Obligor set forth therein.
	 
	2.	 	Without limiting the generality of the foregoing terms of paragraph 1, the
Affiliate hereby jointly and severally, together with all other Obligors, guarantees
to the Bank the prompt payment and performance of the Liabilities in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise)
strictly in accordance with the terms thereof and agrees that if any of such
Liabilities are not paid or performed in full when due (whether at stated maturity, as
a mandatory prepayment, by acceleration or otherwise), the Affiliate shall, jointly
and severally together with all other Obligors, promptly pay and perform the same,
without any demand or notice whatsoever, and that in the case of any extension of time
of payment or renewal of any of the Liabilities, the same shall be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, or otherwise) in accordance with the terms of such extension or renewal.
	 
	3.	 	As security for all Liabilities, the Affiliate hereby assigns, transfers and
pledges to the Bank, and grants to the Bank a security interest in, the following
Collateral:




26









 












     (i) All property assigned, transferred or pledged by the Affiliate to the Bank
as collateral securing Liabilities and other obligations of the Obligors as of the
date hereof, (ii) all of the Residential First Mortgage Collateral, Commercial
Mortgage Collateral, Multifamily Mortgage Collateral, HELOC and Second Mortgage
Collateral, Government and Agency Securities collateral, Other Securities
Collateral, now or hereafter owned by the Affiliate, specifically identified on
Exhibit “A” attached hereto and incorporated herein, or any substitute Exhibit “A”
that may be provided by the Affiliate to the Bank, as Qualifying Collateral and
accepted by the Bank after the date hereof, and (iii) all proceeds and products of
any items of the Collateral described in clauses (i) and (ii) above.




	4.	 	The Affiliate shall furnish the following to the Bank:






     (i) Within 90 days after the end of each fiscal year of the Affiliate, the
Affiliate’s audited consolidated and consolidating balance sheet and related
statement of operations, shareholders’ equity and cash flows as of the end of and
for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by nationally-recognized independent
accounts (without qualification or exception) that such financial statements
present fairly in all material respects the financial condition and results of
operations of the Affiliate in accordance with GAAP.




     (ii) Within 45 days after the end of each fiscal quarter of the Affiliate, the
Affiliate’s consolidation and consolidating balance sheet and related statement of
operations, shareholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or periods
(or, in the case of the balance sheet, as of the end) of the previous fiscal year,
all certified by the Affiliate’s chief financial officer as presenting fairly in
all material respects the financial condition and results of operations of the
Affiliate in accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes.




     (iii) Together with the audited annual financial statements delivered pursuant
to clause (i) above, and together with the quarterly financial statements delivered
pursuant to clause (ii) above, the Affiliate shall deliver to the Bank a
certificate of its chief financial officer, in form and substance satisfactory to
the Bank, (a) stating that such officer has reviewed the relevant terms of the
borrowing Documents, and has made (or caused to be made under such officer’s
supervision) a review of the transactions and conditions of the affiliate from the
beginning of the accounting period covered by the income statements being delivered
to the date of the certificate, and that such review has not disclosed the
existence during such period of any fact, event or circumstance that constitutes an
Event of Default or that is then, or with the passage of time or giving of notice
or both, could become an Event of Default, and if any such condition or event
existed during such period or now exists, specifying the nature and period of
existence thereof and what action the Affiliate has taken or proposes to take with
respect thereto; and (b) certifying and demonstrating that the Affiliate remains
solvent as of the date of such certificate.



27









 






     (iv) Promptly thereafter, copies of all notices, reports, correspondence and
other materials filed by the Affiliate with any governmental authority, and any
other information known to the Affiliate which could reasonably be expected to have
a Material Adverse Effect on the operations, business, or financial condition of
the Affiliate.




	5.	 	Notwithstanding any provision to the contrary contained herein or in the
Advances and Security Agreement, to the extent that obligations of the Affiliate shall
be adjudicated to be invalid or unenforceable for any reason (including, because of
any applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of the Affiliate hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and including the
United States Bankruptcy Code).
	 
	6.	 	The Affiliate agrees that to the extent that any Obligor shall make a payment
or a transfer of any interest in any property to the Bank, which payment or transfer
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise is avoided, and/or required to be repaid to any Obligor,
the estate of any Obligor, a trustee, receiver or any other party under any bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of such
avoidance or repayment, the obligation or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if said payment had not been
made.
	 
	7.	 	The liability of the Affiliate hereunder is exclusive and independent of any
other security for the Liabilities; a separate action or actions may be brought and
prosecuted against the Affiliate whether or not action is brought against any other
guarantor or Obligor and whether or not any other guarantor or Obligor is joined in
any such action or actions; and the Affiliate’s liability hereunder shall not be
affected or impaired by (a) any direction as to application of payment by any Obligor
or by any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Liabilities, or (c)
any payment on or reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by any Obligor,
or (e) any payment made to the Bank on the Liabilities which the Bank repays to any
Obligor pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and the Affiliate waives any right to
the deferral or modification of its obligations hereunder by reason of any such
proceeding.
	 
	8.	 	The Affiliate authorizes the Bank without consent of the Affiliate or notice
or demand (except as shall be required by applicable statute and cannot be waived),
and without affecting or impairing its liability hereunder, from time to time to (a)
make additional Advances to the Borrower, and enter into agreements for Credit
Products and Other Products or Derivative Transactions with the Borrower, (b) change
the terms of the Liability or any part thereof, solely with the consent of the
Borrower, (c) take and hold security from any other guarantor or any other party for
the payment of this guaranty or the Liabilities and exchange, enforce waive and
release any such




28









 






	 	 	security, and apply such security and direct the order or manner of sale thereof as
the Bank in its discretion may determine and (d) release or substitute any one or
more endorsers, guarantors or Obligors.
	 
	9.	 	It is not necessary for the Bank to inquire into the capacity or powers of
any Obligor or the Affiliate or the officers, directors, members, partners or agents
acting or purporting to act on its behalf, and any Liabilities made or created in
reliance upon the professed exercise of such powers shall be guaranteed hereunder.
	 
	10.	 	The Affiliate waives any right (except as shall be required by applicable
statute and cannot be waived) to require the Bank to (i) proceed against any Obligor,
any other guarantor or any other party, (ii) proceed against or exhaust any security
held from any Obligor, any other guarantor or any other party, or (iii) pursue any
other remedy in the Bank’s power whatsoever. The Affiliate waives any defense based
on or arising out of any defense of any Obligor, any other guarantor or any other
party other than payment in full of the Liabilities, including, any defense based on
or arising out of the disability of any Obligor other than payment in full of the
Liabilities. The Bank may, at its election, foreclose on any security held by the
Bank by one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent that such sale is permitted by
applicable law), or exercise any other right or remedy the Bank may have against any
Obligor or any other party, or any security, without affecting or impairing in any way
the liability of the Affiliate hereunder except to the extent the Liabilities have
been paid. The Affiliate waives any defense arising out of any such election by the
Bank, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the Affiliate against any
Obligor or any other party or any security.
	 
	 	 	The Affiliate waives all presentaments, demands for performance, protests and
notices, including, notices of non performance, notice of protest, notices of
dishonor, notices of acceptance of this guaranty, and notices of the existence,
creation or incurring of new or additional Liabilities. The Affiliate assumes all
responsibility for being and keeping itself informed of the other Obligors’
financial condition and assets, and of all other circumstances bearing upon the risk
of nonpayment of the Liabilities and the nature, scope and extent of the risks which
the Affiliate assumes and incurs hereunder, and agrees that the Bank shall not have
any duty to advise the Affiliate of information known to it regarding such
circumstances or risks.
	 
	 	 	AFFILIATE HEREBY EXPRESSLY WAIVES AND SURRENDERS ANY DEFENSE TO ITS LIABILITY UNDER
THIS AGREEMENT BASED UPON ANY OF THE FOREGOING ACTS, OMISSIONS, AGREEMENTS, WAIVERS
OR MATTERS AND EXPRESSLY WAIVES THE BENEFITS OF O.C.G.A. §§10-7-2, 10-7-21, 10-7-22,
10-7-23 AND 10-7-24. IT IS THE PURPOSE AND INTENT OF THIS AGREEMENT THAT THE
OBLIGATIONS OF AFFILIATE




29









 






	 	 	HEREUNDER SHALL BE ABSOLUTE AND UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES.
	 
	 	 	The Affiliate hereby agrees it shall not exercise, and irrevocably waives, any
rights of subrogation which it may at any time otherwise have as a result of this
guaranty (whether contractual, under Section 509 of the United States Bankruptcy
Code, or otherwise) to the claims of the Bank against the Obligors or any other
guarantor of the Liabilities (collectively, the “Other Parties”) and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from any Other Party which it may at any time otherwise have as a result
of this guaranty. The Affiliate hereby further agrees not to exercise any right to
enforce any other remedy which the Bank now has or may hereafter have against any
Other Party, any endorser or any other guarantor of all or any part of the
Liabilities and any benefit of, and any right to participate in, any security or
collateral given to or for the benefit of the Bank to secure payment of its
Liabilities.
	 
	11.	 	The Affiliate hereby grants to the Bank a continuing security interest in, and a
right of set off against any and all right, title and interest of the Affiliate in and
to its Collateral.
	 
	12.	 	The Affiliate acknowledges and confirms that it has received a copy of the
Advances and Security Agreement and has reviewed and understands such Advances and
Security Agreement.
	 
	13.	 	The Borrower and the Affiliates hereby agree that the Liabilities shall have
priority in right and remedy over any indebtedness or other obligations, whenever made
and however evidenced, by such Borrower or Affiliate to the Borrower or any other
Affiliate (“Intercompany Indebtedness”). The Borrower hereby subordinates the lien
securing any Intercompany Indebtedness and any security arrangements with respect to
Intercompany Indebtedness to the lien of this agreement securing the Liabilities.
	 
	14.	 	Each Obligor hereby represents and warrants that, as of the date hereof, the
date of each Advance, Credit Product, Derivative Transaction or Other Product, and the
date of delivery of each collateral report required under Section 3.07(A) of the
Advances and Security Agreement.






     (i) (a) The Affiliate has received valuable consideration, fair value, fair
consideration or reasonably equivalent value for entering into this Agreement and
(b) the performance by the Affiliate of its obligations hereunder shall not render
the Affiliate insolvent, reduce the Affiliate’s capital to an unreasonably small
amount or reduce the Affiliate’s assets to an amount less than that necessary to
conduct its business, or cause the Affiliate to have incurred debts (or to have
intended to have incurred debts) beyond its ability to pay such debts as they
mature.



30









 






     (ii) Either (a) the borrower directly owns 100% of the voting and other equity
interests in the Affiliate (provided, however, that any such Affiliate which is a
real estate investment trust (a “REIT”) may issue preferred equity to employees of
the Borrower or such Affiliate in an amount not to exceed that which is necessary
to qualify as a REIT under the Internal Revenue Code of 1986, as amended) and each
certificate evidencing such voting and other equity interests contain a legend as
set forth below prohibiting the transfer thereof in violation of this provision, or
(b) the Affiliate directly owns 100% of the voting and other equity interests in
the Borrower and each certificate evidencing such voting and other equity interests
contain a legend as set forth below prohibiting the transfer thereof in violation
of this provision.



Form of Legend:




	 	 	THE [SHARES] [MEMBERSHIP INTERESTS] [PARTNERSHIP INTERESTS] REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, ASSIGNED, CONVEYED, PLEDGED OR OTHERWISE TRANSFERRED IN
VIOLATION OF SECTION 14(ii) OF THAT CERTAIN JOINDER AGREEMENT DATED AS OF
________________, AMONG [AFFILIATE], [BORROWER] AND THE FEDERAL HOME LOAN BANK OF
ATLANTA, AS THE SAME MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME. ANY PURPORTED SALE, ASSIGNMENT, CONVEYANCE, PLEDGE OR OTHER
TRANSFER OF [SHARES] [MEMBERSHIP INTERESTS] [PARTNERSHIP INTERESTS] IN VIOLATION OF
SAID AGREEMENT SHALL BE VOID AB INITIO AND OF NO FORCE OR EFFECT.]






     (iii) The Affiliate is not liable for Borrowed Money to any Person,
except the Bank and the Borrower.




     (iv) The Collateral pledged by the Affiliate hereunder was previously owned by
the Borrower and was transferred to the Affiliate subject to the preexisting
security interest of the Bank. The Affiliate acknowledges that the consent of the
Bank was required prior to such transfer and that in consideration of such consent
and in exchange therefor, the Affiliate hereby agrees and confirms that the
security and collateral interest of the Bank in the Collateral shall secure all
existing and future Liabilities, however and whenever arising.




	15.	 	Until the termination of this Agreement and the indefeasible satisfaction in
full of all of the Liabilities:






     (i) The Affiliate will not incur or permit to exist any liability for Borrowed
Money to any Person, except the Bank and the Borrower.




     (ii) The Affiliate will not directly or indirectly: (a) amend, modify or waive
any term or provision of its organizational documents, including its articles of



31









 







incorporation, certificates of designations pertaining to preferred stock,
by-laws, partnership agreement or operating agreement unless required by law; (b)
enter into any transaction or merger or consolidation; (c) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution); or (d) acquire by
purchase or otherwise all or any substantial part of the business or assets of any
other Person.




     (iii) The Affiliate will not directly or indirectly enter into or permit to
exist any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any management, consulting, investment banking,
advisory or other similar services) with any affiliate of the Affiliate (other than
the Borrower) or with any director, officer or employee of any Obligor, except (a)
transactions in the ordinary course of and pursuant to the reasonable requirements
of the business of the Affiliate and upon fair and reasonable terms which are no
less favorable to the Affiliate than would be obtained in a comparable arm’s length
transaction with a Person that is not an affiliate of the Affiliate, and (b)
payment of reasonable compensation to directors, officers and employees for
services actually rendered to the Affiliate.




	16.	 	The Borrower confirms that all of its obligations under the Advances and
Security Agreement are, and upon Affiliate becoming a party to such Advances and
Security Agreement, shall continue to be, in full force and effect. The parties
hereto confirm and agree that immediately upon Affiliate becoming a party to the
Advances and Security Agreement the term “Liabilities,” as used in the Advances and
Security Agreement, shall include all obligations of the Affiliate from time to time
under the advances and Security Agreement.
	 
	17.	 	The Affiliate agrees that at any time and from time to time, upon the written
request of the Bank, it will execute and deliver such further documents and do such
further acts and things as the Bank may reasonably request in order to effect the
purposes of this Agreement.
	 
	18.	 	This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall constitute one
contract.
	 
	19.	 	This Agreement shall be governed by and construed and interpreted in
accordance with the laws (exclusive of the choice of law provisions) of the State of
Georgia.





[Signatures appear on following page.]







32









 








     IN WITNESS WHEREOF, each of the Borrower, the Affiliate and the Bank has caused this Agreement
to be duly executed by its authorized officers, as of the day and year first above written.



	 	 	 	 	 
	 	[BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[AFFILIATE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FEDERAL HOME LOAN BANK OF ATLANTA

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



33









 






	 	 	 	 	 



Attach Collateral Description

for Joinder Agreement

as Exhibit “A”




34








 





EXHIBIT B



Form of Collateral Pledge Amendment



          THIS COLLATERAL PLEDGE AGREEMENT (THE “Amendment”), dated as of [Insert Date], is among
[Insert name of Affiliate] (“Affiliate”), [Insert Name of Borrower] (“Borrower” and together with
the Affiliate, “Obligors”) and the Federal Home Loan Bank of Atlanta (“Bank”). The Obligors and
the Bank wish to amend Section 3.01 of the Advances and Security Agreement, dated as of [Insert
Date of Agreement], between the Borrower and the Bank, as amended by a Joinder Agreement, dated as
of [Insert Date of Joinder], among the Obligors and the Bank (the “Advances and Security
Agreement”). All of the defined terms in the Advances and Security Agreement are incorporated
herein by reference.




          Accordingly, the Obligors and the Bank hereby agree as follows:




***CHOOSE ONLY ONE OF THE FOLLOWING ALTERNATIVES FOR

SECTION 1***





	[1.	 	Section 3.01 of the Advances and Security Agreement is hereby amended as follows:
	 
	 	 	The Collateral marked below is hereby removed and deleted in its entirety from
the pledge of Collateral by the Obligors to the Bank pursuant to Section 3.01(ii)
of the Advances and Security Agreement:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Bank:	 	Borrower:	 	Affiliate:
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	Residential First Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	Multifamily Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:
	 	 	 	Title:
	 	 	 	Title:
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	HELOC and Second Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	Commercial Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 ]
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





35









 





***OR***




	 	 	[To the extent that a category has been previously deleted, and the parties now want
to grant such a pledge]
	 
	[1.	 	Section 3.01 of the Advances and Security Agreement is hereby amended as follows:
	 
	 	 	As security for all Liabilities, each Obligor hereby assigns, transfers and
pledges to the Bank, and grants to the Bank a security interest in, all of the
Collateral marked below:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Bank:	 	Borrower:	 	Affiliate:
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	Residential First Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	Multifamily Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	HELOC and Second Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 ]
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	o
	 	Commercial Mortgage Collateral	 	By:	 	 	 	By:	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	Title:	 	 	 	Title:	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	Each Obligor acknowledges and agrees that such Collateral will be treated
as Collateral for all purposes under the Advances and Security Agreement, and that
such Collateral shall be subject to all of the terms and conditions thereof.
	 
	 	2.	 	The Borrower hereby acknowledges and agrees that, except as expressly provided
below, at any time required in the Credit and Collateral Policy, it will assign,
transfer and pledge to the Bank, and grant to the Bank a security interest in, all of
the




36









 






	 	 	 	Borrower’s Residential First Mortgage Collateral, Multifamily Mortgage Collateral,
HELOC and Second Mortgage Collateral, and Commercial Mortgage Collateral.
Notwithstanding the previous sentence, the Borrower shall not be required to
assign, transfer, pledge to the Bank or grant to the Bank a security interest in,
all of the Borrower’s Residential First Mortgage Collateral, Multifamily Mortgage
Collateral, HELOC and Second Mortgage Collateral, and Commercial Mortgage
Collateral, so long as, at such time provided in the Credit and Collateral Policy,
and at all times thereafter, the Borrower meets each of the following conditions:






	 	•	 	Total assets of the Borrower exceed $250,000,000,000; and
	 
	 	•	 	The ratio of Liabilities to total assets of the Borrower does not exceed
10 percent.






	 	3.	 	This Amendment may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall constitute one
contract.
	 
	 	4.	 	This Amendment shall be governed by and construed and interpreted in
accordance with the laws of the State of Georgia.





[Signatures appear on following page.]







37









 








          IN WITNESS WHEREOF, each of the Borrower, the Affiliate and the Bank has caused this Agreement
to be duly executed by its authorized officers, as of the day and year first above written.




	 	 	 	 	 
	 	[BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[AFFILIATE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FEDERAL HOME LOAN BANK OF ATLANTA

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




38