Exhibit
10.3
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:
|
(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, and Other
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 accountants
(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
consolidated 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.
(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.
-2-
|
|
5.
|
Notwithstanding
any provision to the contrary contained herein or in the Advances
and Security Agreement, to the extent the 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 an 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 and Derivative Transactions with the Borrower, (b) change
the terms of the Liabilities 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
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
|
-3-
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, any other guarantor or any other party,
or the unenforceability of the Liabilities or any part thereof from
any cause, or the cessation from any cause of the liability 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
|
|
