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EXHIBIT 10.1
FEDERAL HOME LOAN BANK OF SEATTLE
SEATTLE WASHINGTON
ADVANCES, SECURITY AND DEPOSIT AGREEMENT
March 29, 1991
This Advances, Security and Deposit Agreement ("Agreement") is made as
of the above date and is between the Federal Home Loan Bank of Seattle,
including its successors ("Bank"), and Cowlitz Bank, including its
successors("Member"). Except as to Members which have not signed prior
Agreements, it renews, amends and restates prior contracts between the parties
or their predecessors entitled "Advances Agreement, Pledge Agreement and
Security Agreement" and "Deposit Account Resolution."
RECITALS
A. The Bank is authorized by the Federal Home Loan Bank Act, as
amended, and related regulations and directives ("Act"), and by the Bank's own
policies, to make loans to the Member ("Advances"). The Bank is also
authorized to provide demand and time deposit accounts to the Member
("Accounts") and to perform additional services, all of which may create
obligations from the Member to the Bank ("Other Obligations"). Other
Obligations may include, without limitations, debts by reason of interest rate
swap agreements, letters of credit, overdrafts, NOW accounts, settlements, and
wire transfers.
B. This Agreement, and related policies which are, from time to
time, sent by the Bank to its Members, specifies the terms and conditions under
which the Bank may make Advances available to the Member; open and use
Accounts; and collateralize such Advances and other Obligations.
AGREEMENTS
1. Prior to or at the time of the execution and delivery of this
Agreement, the Member has provided the Bank with a certified copy of a
resolution adopted by the Member's Board of Directors or other governing body
("Resolution") approving this Agreement and authorizing designated officers or
employees of the Member to obtain Advances, open and use Accounts, and incur
Other Obligations. The Bank may rely upon, and the Member is estopped from
denying, the authority of the persons designated in the Resolution.
2. The Member may request Advances from the Bank by applying to
the Bank in such form as it shall require.
3. Each Advance shall be evidenced by a promissory note ("Note")
or by another confirming document as required by the Bank. The applicable
terms and conditions of this Agreement are
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incorporated therein as well as in other agreements, if any, that relate to
Other Obligations.
4. On the first day of each month or at such other times that
payments of principal and/or interest are due, the Member agrees to pay, or to
authorize a charge to the Member's Account for the principal and/or interest
that is due on each outstanding Advance, Note or Other Obligation. Interest
shall be charged at the rate set forth in the Note or other instrument
evidencing the Indebtedness. Delinquent principal and/or interest may bear
interest, at the option of the Bank, equal to the Bank's then-current Flexible
Balance advance rate.
5. As collateral ("Security") for the payment of all Advances,
Notes or Other Obligations (collectively, "Indebtedness") of the Member to the
Bank, the Member hereby assigns, pledges and grants security interests to the
Bank ("Security Interests") in the following: (a) its stock in the Bank; (b)
its funds on deposit with the Bank; (c) its notes or other instruments
representing obligations of third parties, including the proceeds thereof, and
any related mortgages or deeds of trust ("Mortgages") securing any of them
and/or any securities representing an interest in such Mortgages; (d)
securities issued, insured or guaranteed by the United States government or by
any agency thereof, (e) other real estate-related collateral; and (f) its
instruments, accounts, general intangibles, inventory, equipment and other
property in which a security interest can be granted by the Member to the Bank.
Upon the withdrawal from membership in the Bank, and as the final part of the
plan of liquidation of the Member's Indebtedness to the Bank, the stock of such
Member may be redeemed and credited upon the Indebtedness of the Member, in
whole or in part, for an amount equal to the par value of the stock which would
otherwise be paid to the Member by the Bank.
6. The Member agrees that it holds the Security for the benefit
of, and subject to the direction and control of, the Bank; including, without
limitation, the following: (a) Security and Security Interests shall include
and extend to after-acquired Security; (b) the Member may use, commingle or
dispose of all or part of the Security or proceeds thereof if, at all times it
owns and maintains Security of the types and kinds specified by the Act and as
required to meet the requirements thereof, free and clear of pledges, liens or
other encumbrances of third parties, in such amount of the outstanding
Indebtedness as may be specified by the Bank from time to time; (c) at its
expense and as soon as possible upon demand by the Bank, the Member will
assemble, segregate and/or deliver such portions of the Security as are
directed by the Bank at or to a location designated by it; will allow the Bank
to participate in such assembly, segregation or delivery and to verify or audit
such Security, including, without limitation, access to the Member's premises
and records for such purposes, and will protect and promptly disclose to the
Bank any material change in value of the Security so assembled, segregated or
delivered; (d) the Member promptly will make, execute and deliver to the Bank
such
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assignments, listings, powers or other documents as the Bank may reasonably
request concerning the Security; (e) at its expense, the Member promptly will
provide to the Bank such reports, audits and confirmations regarding the
Security as the Bank may reasonably request; and (f) the Member shall pay to
the Bank any reasonable fees associated with the processing, control, and
maintenance of such Security.
7. Upon the occurrence or any one or more of the following events
("Default"), the Bank may, without notice, declare and thereby cause all
Indebtedness of the Member to be due and payable immediately: (a) failure of
the Member to make any payment due on any Indebtedness, or breach of or
failure, to perform any other duty as provided herein or in any other agreement
to which the Member and the Bank are parties; (b) any taking over of the Member
or any of its assets by a supervising agency, or an application for or the
appointment of a conservator, receiver, trustee or liquidator for it or any of
its assets; (c) an adjudication of the Member's bankruptcy or insolvency; (d)
an assignment by the Member for the benefit of creditors, a general transfer of
its assets for any purpose or any other form of liquidation, merger, sale of
assets or dissolution of or by the Member; (e) existence of facts indicating a
representation, statement or warranty made or furnished to the Bank by or on
behalf of the Member in connection with all or part of any Indebtedness or
other transaction was or is false in any material respect; (f) damage, loss,
sale or encumbrance of any of the Security except as permitted by this
Agreement; (g) any levy, seizure, garnishment (as the debtor), execution,
attachment or other process issued against the Member; (h) any event which
results in acceleration of the maturity of any debt of the Member to others;
(i) good faith determination by the Bank that the Member's ability to repay any
Indebtedness has become impaired or that a material adverse change has occurred
in the financial condition of the Member from that disclosed to the Bank at the
time of creation of any Indebtedness or subsequently; (j) any increase in the
creditor liabilities of the Member, other than its liabilities to the Bank, to
an amount exceeding five percent (5%) of the Member's net assets; (k)
termination of the Member's membership in the Bank; or (l) good faith
determination by the Bank that there is a reasonable possibility that the
Indebtedness would not be paid in full from the proceeds of a liquidation of
the Security if the Bank did not declare a Default.
8. At any time after Default, the Member may not substitute
Security without permission of the Bank,and the Bank shall have all of the
rights and remedies of a secured party under the Act, the Uniform Commercial
Code of the State of Washington and/or as otherwise provided by law, by this
Agreement or by any other agreement between the parties ("Default Rights")
including, without limitation, the Bank's right to take immediate possession of
any or all Security wherever located and to dispose of the Security in
accordance with applicable law. If any notice of disposition of Security is
required by law, such notification shall be deemed reasonable, and properly
given if mailed, postage prepaid, at least
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five calendar days before such disposition to the last address of the Member
then appearing on the records of the Bank. The proceeds of any disposition of
Security shall be applied in the following order to payment of: (a) all
reasonable expenses incurred by or on behalf of the Bank for the collection,
care, safekeeping, sale, foreclosure, delivery or other disposition of Security
including, without limitation, insurance, commissions, guarantees, security
valuation fees, expenses, costs and reasonable attorneys' fees incurred in
connection therewith; (b) interest on all Indebtedness, whether due or accrued;
(c) the principal amount of all Indebtedness; (d) any secondarily secured debt
of the Member to any third party who proves its subordinate security interest
in the Security to the reasonable satisfaction of the Bank; and (e) any
remainder to the Member. If there is a deficiency, the Member shall be liable
to the Bank therefor. No delay by the Bank in the exercise of its Default
Rights shall operate as a waiver, and a waiver of any specific Default Right
shall not constitute a waiver of any other Default Right not specifically
waived. The Member hereby irrevocably appoints the Bank and/or its designee as
its true and lawful attorney in fact to deal in any manner with the Security in
the event of a Default.
9. The Member may open Accounts with the Bank subject to the
Regulations of the Bank. Any Member's funds deposited in Accounts shall be
subject to withdrawal or charge at any time and from time to time upon checks,
wire transfers, or any other orders for the payment of money when made and
drawn on behalf of the Member by a person or persons authorized by the Member
on a signature card or cards. The Bank is authorized to pay any such checks,
wire transfers, or other orders, provided they are in the form prescribed by
it, and to charge the Member's Accounts therefor, without inquiry as to the
circumstances of issue or the disposition of the proceeds, even if drawn to the
individual order of an authorized person or payable to others for his account.
10. The Bank, if it acts in good faith and with ordinary care (and
without liability if it does so act), can charge the Accounts with orders
received by the Bank from any person acting for or purporting to act for the
Member by telephone, or otherwise orally, for the transfer of funds to others,
including the person giving such instructions, or payable to others for his
account, or between Accounts of the Member. All authorized Bank charges and
fees will be charged monthly to such Accounts.
11. Unless otherwise provided, all checks, drafts, money orders or
other negotiable items or withdrawal clearing through the Accounts shall be
truncated. Original items will be retained by the Bank or its designee for a
period of ninety (90) days. At any time, the Member may request a photostatic
copy of any item processed within the past seven years, and the Bank or its
designee will furnish such copy as soon thereafter as is reasonably possible.
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12. The Member shall maintain a net positive collected balance in all
of its Accounts. The Bank shall have the option of closing or restricting the
use of Accounts in which positive balances are not maintained. For each day
the aggregate collected balance of an Account is negative, the Member shall pay
such charges as are consistent with the Bank's published schedules.
13. The Member agrees to provide to the Bank, within five days after
a request, its business plans and other financial data. In connection with,
and as an extension of, any other informational rights of the Bank relating to
examination of the Member by a supervising agency and reports relating thereto,
the Member agrees that all Security shall always be subject to audit and
verification, at the Member's expense, by or on behalf of the Bank and that the
Bank shall have access to the Member's premises and records for that purpose.
14. If the services of an attorney, either with or without suit, are
engaged by the Bank in connection with any Default or any dispute relating to
this Agreement, the Member agrees to pay the Bank's reasonable attorneys' fees,
expenses and costs incurred in connection therewith.
15. This Agreement shall be construed and enforced according to the
laws of the State of Washington and the Act. If any provision hereof is
inconsistent with the Act, this Agreement shall be deemed amended to the end
that such provision is not in conflict with the Act. In the event any such
provision cannot be so amended and is found to be contrary to law, the balance
of this Agreement shall remain in full force and effect if so elected by the
Bank.
16. This Agreement shall continue until terminated by written notice
from one party to the other, provided that this Agreement shall remain
applicable to all then outstanding Indebtedness and duties of the Member and to
the documents relating thereto.
Cowlitz Bank
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(Name of Member)
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ President and Chief Executive Officer
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(Name) (Title)
/s/
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(Signature)
Its Chief Executive Officer Date: March 29, 1991
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(Title)
and
By ▇▇▇▇▇ ▇▇▇▇▇▇▇ Cashier and Operations Manager
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(Name) (Title)
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/s/
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(Signature)
Its Cashier and Operations Date: March 29, 1991
Manager --------------
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(Title)
FEDERAL HOME LOAN BANK OF SEATTLE
By
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(Name) (Title)
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(Signature)
Its Date: , 199
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(Title)
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