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EXHIBIT 10.54
FEDERAL HOME LOAN BANK OF DES MOINES
DES MOINES, IOWA
AGREEMENT FOR ADVANCES PLEDGE AND SECURITY AGREEMENT
SPECIFIC PLEDGE
This Agreement for Advances, Pledge and Security Agreement
("Agreement"), effective the 1st day of September, 1995 is entered between
American Vanguard Life Insurance Company ("Member"), with principal offices at
000 0xx Xxxxxx, Xxx Xxxxxx and the Federal Home Loan Bank of Des Moines
("Bank"), with principal offices at 000 Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
WHEREAS, The Bank in accordance with the Federal Home Loan Bank Act,
regulations and directives of the Federal Housing Finance Board and policies
promulgated by its own Board, makes available advances to its members. The
available advances are set forth by the Bank in a statement of "Credit Policy,"
as may be amended from time to time.
WHEREAS, The Member may, from time to time, apply for an advance or
advances which may be available to it.
NOT THEREFORE, For valuable consideration and with respect to each and
every such advance, the Parties agree as follows:
SECTION 1. CONFIRMATION OF ADVANCE. To be bound by the terms and
conditions set forth herein, in the confirmation of advance issued with respect
to each advance, and in the Bank's Credit Policy as may be amended from time to
time. A confirmation of advance shall mean a writing or machine readable
electronic transmission in such form or forms as may be determined by the Bank
from time to time.
SECTION 2. PAYMENT TO THE BANK. To repay each and any advance together
with interest thereon according to the confirmation of each such advance
communicated to the Member by the Bank, together with any unpaid costs and
expenses in connection therewith. Such payment shall be made at the office of
the Bank in Des Moines, Iowa, or at such other place as the Bank, or its
successors or assigns, may from time to time appoint in writing.
The default rate on past due principal and interest may, at the option of
the Bank, be at a rate 1% per annum higher than the then current rate being
charged by the Bank for advances.
SECTION 3. ASSIGNMENT TO BANK OF SECURITY INTEREST IN BANK STOCK. The
Member hereby assigns, transfers and pledges to the Bank, its successors or
assigns, all stock of the Federal Home Loan Bank of Des Moines owned by the
Member as collateral security for payment of any and all indebtedness, whether
in the nature of an advance or otherwise, of the Member to the Bank, its
successors and assigns.
SECTION 4. ASSIGNMENT OF SECURITY INTEREST IN OTHER COLLATERAL. As
additional collateral security for any and all such advances, Member assigns,
transfers, and pledges to the Bank, its successors or assigns, property of
Member as described in Exhibit A hereof (the "Collateral"). With respect to
such Collateral, Member undertakes and agrees as follows:
A. To keep and maintain such Collateral free and clear of pledges,
liens and encumbrances to others at the required collateral maintenance
level. The "required collateral maintenance level" means the amount of
collateral the member is required to maintain free and clear of pledge,
liens and encumbrances to others as set forth from time to time in the
Bank's Credit Policy;
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B. To assemble and deliver Collateral to the Bank or its authorized
agents immediately upon demand of the Bank; and as specified by the Bank in
its Credit Policy from time to time, and to pay for the safekeeping
collateral as established by the Bank;
C. To make, execute and deliver to the Bank such assignments,
endorsements, listings, powers, financing statements or other instruments
as the Bank may reasonably request respecting such Collateral.
SECTION 5. DUTY TO USE REASONABLE CARE. In the event Member delivers
security to the Bank or its Agent pursuant to section 4 above, the duty of the
Bank with respect to said security shall be solely to use reasonable care in
the custody and preservation of the security in its possession.
SECTION 6. ADDITIONAL SECURITY. Member shall assign additional or
substituted Collateral for such advances at any time the Bank shall deem it
necessary for the Bank's protection.
SECTION 7. EVENTS OF DEFAULT. The Bank may consider the Member in default
hereunder upon the occurrence of any of the following events or conditions:
A. Failure of the Member of pay any interest, or repay any principal,
of any advances as herein required; or
B. Breach or failure to perform by the Member of any covenant,
promise, condition, obligation, or liability contained or referred to
herein, or any other agreement to which the Member and the Bank are
parties; or
C. Proof being made that any representations, statements, or warranty
made or furnished in any manner to the Bank by or on behalf of the Member
in connection with all or part of any advance was false in any material
respect when made or furnished; or
D. Loss, theft, damage, destruction, sale or encumbrance to or of any
of the Collateral except as herein permitted, or the making of any levy,
seizure or attachment thereof or therein; or
E. Any tax levy, attachment, garnishment, levy of execution, or other
process issued against the Member or the Collateral; or
F. Any suspension of payment by the Member to any creditor or any
events which result in acceleration to the maturity of any indebtedness of
the Member to others under any indenture, agreement or undertaking; or
G. Application for, or appointment of, a receiver of any part of the
property of the Member, or in case of adjudication of insolvency, or
assignment for benefit of creditors, or general transfer of assets by the
Member, or if management of the Member is taken over by any supervisory
authority, or in case of any other form of liquidation, merger, sale of
assets, or voluntary dissolution, or upon termination of the membership of
the Member in the Federal Home Loan Bank of Des Moines, or in the case of
advances made under the provisions of 12 U.S.C. - ss. 1431(g)(4), if at
any time thereafter the creditor liabilities of the Member, excepting its
liabilities to the Bank, are increased in any manner to an amount exceeding
5% of its net assets; or
H. Determination by the Bank that a material adverse change has
occurred in the financial condition of the Member from that disclosed at
the time of the making of any advance, or from the condition of the Member
as theretofore most recently disclosed to the Bank in any manner; or
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I. If the Bank reasonably and in good xxxxx xxxxx itself insecure
even though the Member is not otherwise in default.
SECTION 8. BANK REMEDIES IN THE EVENT OF DEFAULT. At any time after any
default as herein before provided, the Bank may, at its option, declare the
entire amount of any and all advances to be immediately due and payable. The
Bank shall have all of the remedies of a secured party under the Uniform
Commercial Code of the State of Iowa. In addition thereto, the Bank may take
immediate possession of any of the Collateral or any part thereof wherever the
same may be found. The Member agrees to pay all the costs and expenses of the
Bank in the collection of the secured indebtedness and enforcement of the
Bank's rights hereunder including, without limitation, reasonable attorney's
fees. The Bank may sell the Collateral or any part thereof in such manner and
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
public or private sale. If any notification of intended disposition of any of
the Collateral is required by law, such notification shall be deemed reasonable
and properly given if mailed, postage prepaid, at least five days before any
such disposition to the address of the Member appearing on the records of the
Bank. The proceeds of any sale shall be applied in the following order: First,
to pay all costs and expenses of every kind for the care, collection,
safekeeping, sale, foreclosure, delivery or otherwise respecting the Collateral
(including expenses incurred in the protection of the Bank's title to or lien
upon or right in any of the Collateral, expenses for legal services of any kind
in connection therewith or in making any such sale or sales, insurance,
commission for sales, and guaranty); then to interest on all indebtedness of
the Member to the Bank; then to the principal amount of any such indebtedness
whether or not such indebtedness is due or accrued. The Bank, at its
discretion, may apply any surplus to indebtedness of Member to third parties
claiming a secondary security interest in the Collateral. Any remaining surplus
shall be paid to the Member.
SECTION 9. APPOINTMENT OF BANK AS ATTORNEY-IN-FACT. In the event of
default, and without limiting any other rights the Bank might have as a secured
party under the Uniform Commercial Code of Iowa, or the laws of any
jurisdiction under which the Bank might be exercising rights hereunder, and
under this Agreement, Member does hereby make, constitute, and appoint Bank its
true and lawful attorney-in-fact to deal with the Collateral and, in its name
and stead to release, collect, compromise, settle, and release or record any
mortgage of deed or trust which is a part of such Collateral as fully as the
Member could do if acting for itself. The powers herein granted are coupled
with an interest, and are irrevocable, and full power of substitution is
granted to the Bank in the premises.
SECTION 10. AUDIT AND VERIFICATION OF COLLATERAL. In extension and not in
limitation of all requirements of law respecting examination of the Member by
or on behalf of the Bank, the Member agrees that all Collateral pledged
hereunder shall always be subject to audit and verification by or on behalf of
the Bank in its corporate capacity.
SECTION 11. RESOLUTION TO BE FURNISHED BY MEMBER. Member agrees to furnish
to the Bank from time to time a certified copy of resolution of its Board of
Directors or other governing body authorizing such of the Member's officers as
the Member shall select to apply for advances from the Bank. Unless the Bank
shall be otherwise notified in writing, the Bank may honor applications made by
such officers other than in writing; but, in such event the Member shall
confirm such application for advance in writing on forms furnished by the
Bank. But the member shall forever be estopped to deny its obligation to repay
such advance whether or not an application in writing is ever received by the
Bank so long only as the advance is made in good faith by the Bank on the
request of an officer or employee so authorized by the Member.
SECTION 12. APPLICABILITY OF BANK ACT. In addition to the terms and
conditions herein specifically set forth, all advances are subject to the
rights, powers, privileges and duties conferred upon the Federal Housing
Finance Board, the Federal Home Loan Banks, and on member institutions by the
Act of Congress entitled, "Federal Home Loan Bank Act, as amended."
SECTION 13. JURISDICTION. In any action or proceeding brought by the Bank
or the Member in order to enforce any right or remedy under this Agreement,
Member will submit to the jurisdiction of the United States District Court for
the Southern District of Iowa, or if such action or proceeding may not be
brought in Federal Court, the jurisdiction of the Iowa District Court in Polk
County.
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If any action or proceeding is brought by the Member seeking to obtain
relief against the Bank arising out of this Agreement and such relief is not
granted by a court of competent jurisdiction, the Member will pay all
attorney's fees and court costs incurred by the Bank in connection therewith.
SECTION 14. CHOICE OF LAW. This Agreement shall be construed and
enforced according to the laws of the State of Iowa, except that the rate of
interest on advances hereunder shall be governed by the provisions of 12 U.S.C.
ss. 1430 as amended).
SECTION 15. AGREEMENT CONSTITUTES ENTIRE AGREEMENT. This Agreement
embodies 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 the subject matter except that: The Credit
Policy as duly adopted by the Bank's Board of Directors from time to time shall
be incorporated herein, unless agreed to in writing by both parties. Advances
made by the Bank to Member prior to the execution of this Agreement shall
continue to be governed exclusively by the terms of the prior agreements
pursuant to which such advances were made, except that (i) any default
thereunder shall constitute default hereunder, (ii) Collateral furnished as
security hereunder shall also secure such prior advances, and (iii) the rights
and obligations with respect to such Collateral shall be governed by the terms
of this Agreement.
SECTION 16. SECTION HEADINGS. Section headings are not to be considered
part of this Agreement. Section headings are solely for convenience of
reference, and shall not effect the meaning or interpretation of this Agreement
or any of its provisions.
SECTION 17. SEVERABILITY OF SECTIONS. If any section or portion thereof
is deemed void in any legal proceeding, the remainder of the Agreement shall
remain in full force and affect.
SECTION 18. The person signing this document on behalf of the Member
represents that its execution was authorized by appropriate action of the
directors of the Member which was completed on the day of
, 19 , and that such action is duly reflected in the
records of the Member.
American Vanguard Life Insurance Company
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(Full Corporate Name of Member) FEDERAL HOME LOAN BANK OF DES MOINES
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President Title: First Vice President
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Date: 9-7-95 Date: 9/7/95
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By: /s/ Xxxxx X. Xxxxxxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: Secretary Title: Vice President
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Date: 9-7-95 Date: 9/7/95
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