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EXHIBIT 10.53
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 12th day of March, 1992, is entered between Central Life Assurance
Company ("Member"), with principal offices at 000 0xx Xxxxxx, Xxx Xxxxxx, 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, property of
Member as described in Exhibit A hereof (the "Collateral"). With respect to
such Collateral, Member undertakes and agrees as follows:
A. That 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;
B. 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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C. 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;
D. 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 occurrences 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 19 U.S.C. ss. 1491(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 lability for any loss
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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 in 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 stopped to deny its obligations to repay such
advances 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 of 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 or 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. 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
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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 affect 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 12th day of March, 1992,
and that such action is duly reflected in the records of the Member.
Central Life Assurance Company FEDERAL HOME LOAN BANK OF DES
--------------------------------------- MOINES
(Full Corporate Name of Member)
By: /s/ Xxxxx Xxxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ -----------------------------
Xxxxx Xxxxxxxxxxxx Title: Senior Vice President
Title: Executive Vice President-Finance --------------------------
--------------------------------- Date: March 13, 1992
Date: March 12, 1992 --------------------------
---------------------------------- By: /s/ Xxxxx X. Xxxxxxxx
By: /s/ Xxxxx X. Xxxxxxxxxxxxx -----------------------------
------------------------------------ Title: Vice President
Xxxxx X. Xxxxxxxxxxxxx --------------------------
Title: Vice President, General Counsel Date: March 13, 1992
& Secretary ---------------------------
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Date: March 12, 1992
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