Exhibit 10.9
Standard Agreement for Advances, Pledge and Security Agreement between Xxxxxxx
Bank and the Federal Home Loan Bank of Des Moines.
64
FEDERAL HOME LOAN BANK OF DES MOINES
Des Moines, Iowa
AGREEMENT FOR ADVANCES, PLEDGE AND SECURITY AGREEMENT
Blanket Pledge
This Agreement for Advances, Pledge and Security Agreement
("Agreement"), effective the 16th day of DECEMBER 1993, is entered
between XXXXXXX FIRST NATIONAL BANK ("Member"), with principal
offices at 0000 XXXXX, XXXXXXXXX, XX 00000 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.
NOW 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, each and every note or other instrument
evidencing a debt and any mortgage, deed of trust, title, or
document of title securing it; all securities (including, but not
limited to mortgage-backed securities issued or guaranteed by the
Federal Home Loan Mortgage Corporation, the Federal National
Mortgage Association, obligations of or guaranteed by the United
States or an agency thereof, share certificates or other
participation interests in any securities trust, mortgage loan
participation certificates); all contract for deeds, all chattel
paper; any chose in action; all general intangibles; all deposit
accounts; certificates of deposit; and proceeds from any of the
above (hereinafter "Collateral"). With respect to such Collateral,
Member undertakes and agrees as follows:
A. That such security interest shall extend to after acquired
Collateral of a similar nature;
B. That the Member shall be at liberty to use, commingle, and
dispose of all or part of the Collateral, and to collect,
compromise, and dispose of the proceeds of the Collateral without
being required to account for the proceeds or replace the
Collateral subject only to its obligation to maintain the
Collateral as herein provided;
C. 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 Credit Policy;
D. 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;
E. 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 Bank or its Agent pursuant to paragraph 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 to 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, of 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. Section
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
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 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.
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. Section 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 effect.
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
19th day of NOVEMBER, 1993, and that such action is duly reflected
in the records of the Member.
XXXXXXX FIRST NATIONAL BANK FEDERAL HOME LOAN BANK OF
DES MOINES
(Full Corporate Name of Member)
By: /s/ Xxxxxx X. Xxxxxxx By:
Title: Executive Vice President Title:
& COO
Date:. December 16, 1993 Date:
By: /s/ Xxxxxxxx X. Xxxxxxxxxxx By:
Title:. Assistant Vice President Title:
Date: December 16, 1993 Date:
Revised 5/91
