GENERAL PLEDGE AGREEMENT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the
undersigned UNITED FINANCIAL CORP. ("Debtor"), hereby assigns, transfers to and
pledges with XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank"), and grants to Bank
a security interest in the following described money and property at any time
delivered to and deposited with Bank:
1,000 shares of common stock of Heritage Bank
1,102,293 shares of common stock of Valley Bancorp., Inc.
(collectively called "Collateral"), and whether held in a general or special
account or deposit for safekeeping or otherwise, together with whatever is
receivable or received when any of the Collateral or proceeds thereof are sold,
collected, exchanged or otherwise disposed of, whether such disposition is
voluntary or involuntary, including without limitation, (a) all rights to
payment, including returned premiums, with respect to any insurance relating to
any of the foregoing, (b) all rights to payment with respect to any claim or
cause of action affecting or relating to any of the foregoing, and (c) all stock
rights, rights to subscribe, stock splits, liquidating dividends, cash
dividends, dividends paid in stock, new securities or other property of any kind
which Debtor is or may hereafter be entitled to receive on account of any
securities pledged hereunder, including without limitation, stock received by
Debtor due to stock splits or dividends paid in stock or sums paid upon or in
respect of any securities pledged hereunder upon the liquidation or dissolution
of the issuer thereof (hereinafter called "Proceeds"), and in the event that
Debtor receives any such Proceeds, Debtor will hold the same in trust on behalf
of and for the benefit of Bank and will immediately deliver all such Proceeds to
Bank in the exact form received, with the endorsement of Debtor if necessary
and/or appropriate undated stock powers duly executed in blank, to be held by
Bank as part of the Collateral, subject to all terms hereof; provided however,
that unless there has occurred an event of default hereunder, the Borrower may
retain that portion of the Collateral which consists of interest and/or cash
dividends earned on the Collateral.
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment
and performance of: (a) all present and future Indebtedness of Debtor to Bank;
(b) all obligations of Debtor and rights of Bank under this Agreement; and (c)
all present and future obligations of Debtor to Bank of other kinds. The word
"Indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of Debtor, or any of them,
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and however arising, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether Debtor may
be liable individually or jointly with others, or whether recovery upon such
Indebtedness may be or hereafter becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the performance of
all obligations of Debtor to Bank, including without limitation, the payment of
all Indebtedness of Debtor to Bank, and the termination of all commitments of
Bank to extend credit to Debtor, existing at the time Bank receives written
notice from Debtor of the termination of this Agreement.
4. OBLIGATIONS OF BANK. Bank has no obligation to make any loans
hereunder. Any money received by Bank in respect of the Collateral may be
deposited, at Bank's option,
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into a non-interest bearing account over which Debtor shall have no control, and
the same shall, for all purposes, be deemed Collateral hereunder. Bank's
obligation with respect to Collateral and Proceeds in its possession shall be
strictly limited to the duty to exercise reasonable care in the custody and
preservation of such Collateral and Proceeds, and such duty shall not include
any obligation to ascertain or to initiate any action with respect to or to
inform Debtor of maturity dates, conversion, call or exchange rights, or offers
to purchase the Collateral or Proceeds, or any similar matters, notwithstanding
Bank's knowledge of the same. Bank shall have no duty to take any steps
necessary to preserve the rights of Debtor against prior parties, or to initiate
any action to protect against the possibility of a decline in the market value
of the Collateral or Proceeds. Bank shall not be obligated to take any action
with respect to the Collateral or Proceeds requested by Debtor unless such
request is made in writing and Bank determines, in its sole discretion, that the
requested action would not unreasonably jeopardize the value of the Collateral
and Proceeds as security for the Indebtedness. Bank may at any time deliver the
Collateral and Proceeds, or any part thereof, to any Debtor, and the receipt
thereof by any Debtor shall be a complete and full acquittance for the
Collateral and Proceeds so delivered, and Bank shall thereafter be discharged
from any liability or responsibility therefor.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Bank that: (a) Debtors legal name is exactly as set forth on the first page of
this Agreement, and all of Debtor's organizational documents or agreements
delivered to Bank are complete and accurate in every respect; (b) Debtor is the
owner and has possession or control of the Collateral and Proceeds; (c) Debtor
has the exclusive right to pledge the Collateral and Proceeds; (d) all
Collateral and Proceeds are genuine, free from liens, adverse claims, setoffs,
default, prepayment, defenses and conditions precedent of any kind or character,
except the lien created hereby or as otherwise agreed to by Bank, or as
heretofore disclosed by Debtor to Bank, in writing; (e) all statements contained
herein and, where applicable, in the Collateral, are true and complete in all
material respects; (f) no financing statement covering any of the Collateral or
Proceeds, and naming any secured party other than Bank, is on file in any public
office; and (g) specifically with respect to Collateral and Proceeds consisting
of investment securities, instruments, chattel paper, documents, contracts,
insurance policies or any like property, (i) all persons appearing to be
obligated thereon have authority and capacity to contract and are bound as they
appear to be, and (ii) the same comply with applicable laws concerning form,
content and manner of preparation and execution.
6. COVENANTS OF DEBTOR.
(a) Debtor agrees in general: (i) to pay Indebtedness secured hereby
when due; (ii) to indemnify Bank against all losses, claims, demands,
liabilities and expenses of every kind caused by property subject hereto;
(iii) to pay all costs and expenses, including reasonable attorneys' fees,
incurred by Bank in the perfection and preservation of the Collateral or Bank's
interest therein and/or the realization, enforcement and exercise of Bank's
rights, powers and remedies hereunder; (iv) to permit Bank to exercise its
powers; (v) to execute and deliver such documents ' as Bank deems necessary to
create, perfect and continue the security interests contemplated hereby;
(vi) not to change its name, and as applicable, its chief executive office, its
principal residence or the jurisdiction in which it is organized and/or
registered without giving Bank prior written notice thereof; (vii) not to change
the places where Debtor keeps any Collateral or Debtors records concerning the
Collateral and Proceeds without giving Bank prior written notice of the address
to which Debtor is moving same; and (viii) to cooperate with Bank in perfecting
all security interests granted herein and in obtaining such agreements from
third parties as Bank deems necessary, proper or convenient in connection with
the preservation, perfection or enforcement of any of its rights hereunder.
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(b) Debtor agrees with regard to the Collateral and Proceeds, unless Bank agrees
otherwise in writing: (i) that Bank is authorized to file financing statements
in the name of Debtor to perfect Bank's security interest in Collateral and
Proceeds; (ii) not to grant any lien on the Collateral or Proceeds, except in
favor of Bank; (iii) not to sell, hypothecate or otherwise dispose of, nor
permit the transfer by operation of law of, any of the Collateral or Proceeds or
any interest therein, nor withdraw any funds from any deposit account pledged to
Bank hereunder; (iv) to keep, in accordance with generally accepted accounting
principles, complete and accurate records regarding all Collateral and Proceeds,
and to permit Bank to inspect the same and make copies thereof at any reasonable
time; (v) if requested by Bank, to receive and use reasonable diligence to
collect Proceeds, in trust and as the property of Bank, and to immediately
endorse as appropriate and deliver such Proceeds to Bank daily in the exact form
in which they are received together with a collection report in form
satisfactory to Bank; (vi) in the event Bank elects to receive payments of
Proceeds hereunder, to pay all expenses incurred by Bank in connection
therewith, including expenses of accounting, correspondence, collection efforts,
filing, recording, record keeping and expenses incidental thereto; (vii) to
provide any service and do any other acts which may be necessary to keep all
Collateral and Proceeds free and clear of all defenses, rights of offset and
counterclaims; and (viii) if the Collateral or Proceeds consists of securities
and so long as no Event of Default exists, to vote said securities and to give
consents, waivers and ratifications with respect thereto, provided that no vote
shall be cast or consent, waiver or ratification given or action taken which
would impair Bank's interests in the Collateral and Proceeds or be inconsistent
with or violate any provisions of this Agreement.
7. POWERS OF BANK. Debtor appoints Bank its true attorney in fact to
perform any of the following powers, which are coupled with an interest, are
irrevocable until termination of this Agreement and may be exercised from time
to time by Bank's officers and employees, or any of them, but only following the
occurrence of a event of default hereunder: (a) to perform any obligation of
Debtor hereunder in Debtors name or otherwise; (b) to notify any person
obligated on any security, instrument or other document subject to this
Agreement of Bank's rights hereunder; (c) to collect by legal proceedings or
otherwise all dividends, interest, principal or other sums now or hereafter
payable upon or on account of the Collateral or Proceeds; (d) to enter into any
extension, modification, reorganization, deposit, merger or consolidation
agreement, or any other agreement relating to or affecting the Collateral or
Proceeds, and in connection therewith to deposit or surrender control of the
Collateral and Proceeds, to accept other property in exchange for the Collateral
and Proceeds, and to do and perform such acts and things as Bank may deem
proper, with any money or property received in exchange for the Collateral or
Proceeds, at Bank's option, to be applied to the Indebtedness or held by Bank
under this Agreement; (e) to make any compromise or settlement Bank deems
desirable or proper in respect of the Collateral and Proceeds; (f) to insure,
process and preserve the Collateral and Proceeds; (g) to exercise all rights,
powers and remedies which Debtor would have, but for this Agreement, with
respect to all Collateral and Proceeds subject hereto; and (h) to do all acts
and things and execute all documents in the name of Debtor or otherwise, deemed
by Bank as necessary, proper and convenient in connection with the preservation,
perfection or enforcement of its rights hereunder. To effect the purposes of
this Agreement or otherwise upon instructions of Debtor, or any of them, Bank
may cause any Collateral and/or Proceeds to be transferred to Bank's name or the
name of Bank's nominee. If an Event of Default has occurred and is continuing,
any or all Collateral and/or Proceeds consisting of securities may be
registered, without notice, in the name of Bank or its nominee, and thereafter
Bank or its nominee may exercise, without notice, all voting and corporate
rights at any meeting of the shareholders of the issuer thereof, any and all
rights of conversion, exchange or subscription, or
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any other rights, privileges or options pertaining to such Collateral and/or
Proceeds, all as if it were the absolute owner thereof. The foregoing shall
include, without limitation, the right of Bank or its nominee to exchange, at
its discretion, any and all Collateral and/or Proceeds upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
issuer thereof, or upon the exercise by the issuer thereof or Bank of any right,
privilege or option pertaining to any shares of the Collateral and/or Proceeds,
and in connection therewith, the right to deposit and deliver any and all of the
Collateral and/or Proceeds with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as Bank may
determine. All of the foregoing rights, privileges or options may be exercised
without liability on the part of Bank or its nominee except to account for
property actually received by Bank. Bank shall have no duty to exercise any of
the foregoing, or any other rights, privileges or options with respect to the
Collateral or Proceeds and shall not be responsible for any failure to do so or
delay in so doing.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor
agrees to pay, prior to delinquency, all insurance premiums, taxes, charges,
liens and assessments against the Collateral and Proceeds, and upon the failure
of Debtor to do so, Bank at its option may pay any of them and shall be the sole
judge of the legality or validity thereof and the amount necessary to discharge
the same. Any such payments made by Bank shall be obligations of Debtor to Bank,
due and payable immediately upon demand, together with interest at a rate
determined in accordance with the provisions of this Agreement, and shall be
secured by the Collateral and Proceeds, subject to all terms and conditions of
this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement: (a) the Pledgor shall
fail to observe or perform any covenant or agreement applicable to the Pledgor
under this Agreement; (b) any representation or warranty made by the Pledgor in
this Agreement shall prove to have been false or materially misleading when
made; (c) any Event of Default shall occur under the Credit Agreement; (d) the
Secured Party receives at any time any information indicating that the Secured
Party's Security Interest is not enforceable, is not perfected or is not prior
to all other security interests or other interests in the Collateral, except as
otherwise agreed by the Secured Party herein.
10. REMEDIES. Upon the occurrence of any Event of Default, Bank shall
have the right to declare immediately due and payable all or any Indebtedness
secured hereby and to terminate any commitments to make loans or otherwise
extend credit to Debtor. Bank shall have all other rights, powers, privileges
and remedies granted to a secured party upon default under the Minnesota Uniform
Commercial Code or otherwise provided by law, including without limitation, the
(a) right to contact all persons obligated to Debtor on any Collateral or
Proceeds and to instruct such persons to deliver all Collateral and/or Proceeds
directly to Bank, and (b) to sell, lease, license or otherwise dispose of any or
all Collateral. All rights, powers, privileges and remedies of Bank shall be
cumulative. No delay, failure or discontinuance of Bank in exercising any right,
power, privilege or remedy hereunder shall affect or operate as a waiver of such
right, power, privilege or remedy; nor shall any single or partial exercise of
any such right, power, privilege or remedy preclude, waive or otherwise affect
any other or further exercise thereof or the exercise of any other right, power,
privilege or remedy. Any waiver, permit, consent or approval of any kind by Bank
of any default hereunder, or any such waiver of any provisions or conditions
hereof, must be in writing and shall be effective only to the extent set forth
in writing. It is agreed that public or private sales or other dispositions, for
cash or on
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credit, to a wholesaler or retailer or investor, or user of property of the
types subject to this Agreement, or public auctions, are all commercially
reasonable since differences in the prices generally realized in the different
kinds of dispositions are ordinarily offset by the differences in the costs and
credit risks of such dispositions. While an Event of Default exists: (a) Debtor
will not dispose of any Collateral or Proceeds except on terms approved by Bank;
(b) Bank may appropriate the Collateral and apply all Proceeds toward repayment
of the Indebtedness in such order of application as Bank may from time to time
elect; (c) Bank may, at any time and at Bank's sole option, liquidate any time
deposits pledged hereunder, whether or not said time deposits have matured and
notwithstanding the fact that such liquidation may give rise to penalties for
early withdrawal of funds; and (d) at Bank's request, Debtor will assemble and
deliver all Collateral and Proceeds, and books and records pertaining thereto,
to Bank at a reasonably convenient place designated by Bank. For any Collateral
or Proceeds consisting of securities, Blank shall have no obligation to delay a
disposition of any portion thereof for the period of time necessary to permit
the issuer thereof to register such securities for public sale under any
applicable state or Federal law, even if the issuer thereof would agree to do
so. Debtor further agrees that Bank shall have no obligation to process or
prepare any Collateral for sale or other disposition.
11. DISPOSITION OF COLLATERAL AND PROCEEDS; TRANSFER OF INDEBTEDNESS.
In disposing of Collateral hereunder, Bank may disclaim all warranties of title,
possession, quiet enjoyment and the like. Any proceeds of any disposition of any
Collateral or Proceeds, or any part thereof, may be applied by Bank to the
payment of expenses incurred by Bank in connection with the foregoing, including
reasonable attorneys' fees, and the balance of such proceeds may be applied by
Bank toward the payment of the Indebtedness in such order of application as Bank
may from time to time elect. Upon the transfer of all or any part of the
Indebtedness, Bank may transfer all or any part of the Collateral or Proceeds
and shall be fully discharged thereafter from all liability and responsibility
with respect to any of the foregoing so transferred, and the transferee shall be
vested with all rights and powers of Bank hereunder with respect to any of the
foregoing so transferred; but with respect to any Collateral or Proceeds not so
transferred, Bank shall retain all rights, powers, privileges and remedies
herein given.
12. STATUTE OF LIMITATIONS. Until all Indebtedness shall have been paid
in full and all commitments by Bank to extend credit to Debtor have been
terminated, the power of sale or other disposition and all other rights, powers,
privileges and remedies granted to Bank hereunder shall continue to exist and
may be exercised by Bank at any time and from time to time irrespective of the
fact that the Indebtedness or any part thereof may have become barred by any
statute of limitations, or that the personal liability of Debtor may have
ceased, unless such liability shall have ceased due to the payment in full of
all Indebtedness secured hereunder.
13. MISCELLANEOUS. When there is more than one Debtor named herein:
(a) the word "Debtor" shall mean all or any one or more of them as the context
requires; (b) the obligations of each Debtor hereunder are joint and several;
and (c) until all Indebtedness shall have been paid in full, no Debtor shall
have any right of subrogation or contribution, and each Debtor hereby waives any
benefit of or right to participate in any of the Collateral or Proceeds or any
other security now or hereafter held by Bank. Debtor hereby waives any right to
require Bank to (i) proceed against Debtor or any other person, (ii) proceed
against or exhaust any security from Debtor or any other person, (iii) perform
any obligation of Debtor with respect to any Collateral or Proceeds, and (d)
make any presentment or demand, or give any notice of nonpayment or
nonperformance, protest, notice of protest or notice of dishonor hereunder or in
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connection with any Collateral or Proceeds. Debtor further waives any right to
direct the application of payments or security for any Indebtedness of Debtor or
indebtedness of customers of Debtor.
14. NOTICES. All notices, requests and demands required under this
Agreement must be in writing, addressed to Bank at the address specified in any
other loan documents entered into between Debtor and Bank and to Debtor at the
address of its chief executive office (or principal residence, if applicable)
specified below or to such other address as any party may designate by written
notice to each other party, and shall be deemed to have been given or made as
follows: (a) if personally delivered, upon delivery; (b) if sent by mail, upon
the earlier of the date of receipt or three (3) days after deposit in the U.S.
mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt.
15. COSTS, EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Bank
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel), expended or
incurred by Bank in exercising any right, power, privilege or remedy conferred
by this Agreement or in the enforcement thereof, whether incurred at the trial
or appellate level, in an arbitration proceeding or otherwise, and including any
of the foregoing incurred in connection with any bankruptcy proceeding
(including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Debtor or in any way
affecting any of the Collateral or Bank's ability to exercise any of its rights
or remedies with respect thereto. All of the foregoing shall be paid by Debtor
with interest from the date of demand until paid in full at a rate per annum
equal to the greater of ten percent (10%) or Bank's Prime Rate in effect from
time to time, but not in excess of the maximum rate permitted under applicable
Minnesota law.
16. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties, and may be amended or
modified only in writing signed by Bank and Debtor.
17. SEVERABILITY OF PROVISIONS. If any provision of this Agreement
shall be held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or any
remaining provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota.
Debtor warrants that Debtor is an organization registered under the
laws of the State of Minnesota
Debtor warrants that its chief executive office (or principal
residence, if applicable) is located at the following address:
000 0xx Xxxxxx X., Xxxxx Xxxxx, XX 00000-0000.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of October
30, 2002.
UNITED FINANCIAL CORP
By: /s/ X. Xxxxx
--------------------------------
X. Xxxxx, Director/President/CEO
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