LOGO of
Federal Home Loan Bank
of Indianapolis
ADVANCES, PLEDGE, AND SECURITY AGREEMENT
This Advances, Pledge, and Security Agreement (the "Advances Agreement"),
dated as of this 13th day of February, 1995 is between People's Trust Company
with its principal place of business at S.R. 000 & Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000 (the "Member") and the Federal Home Loan Bank of
Indianapolis, with its principal place of business at 0000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and mailing address at X.X. Xxx 00,
Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Bank").
WHEREAS, the Bank, subject to the provisions of the Federal Home Loan Bank Act
("Bank Act"), the Rules and Regulations of the Federal Housing Finance Board
or its legal successor ("FHFB Regulations"), the policies of the FHFB and the
Bank's Credit Policies (as hereinafter defined) is authorized to make
available Advances and Other Credit Products to its members: and
WHEREAS, Member desires from time to time to apply for such Advances and Other
Credit Products that may be available to it: and
WHEREAS, the Bank requires that such Advances and Other Credit Products
provided by the bank be secured pursuant to this Advances Agreement, and
Member agrees to provide such security as requested by the Bank by the means
set forth in this Advances Agreement.
NOW THEREFORE, intending to be legally bound, the Member and the Bank agree as
follows:
1. GENERAL.
SECTION 1.01. DEFINITIONS.
As used herein, the following terms shall have the following meanings:
"ADVANCES" means any and all loans or other extensions of credit now or
hereafter granted by the Bank to the Member, including all loans or extensions
of credit by the Bank to the Member prior to the date hereof.
"ADVICE OF CREDIT" means one or more written confirmations to be executed by
the Member and the Bank specifying the type or category of advance made, the
terms of repayment, the interest rate (which may be fixed or variable), and
any other pertinent terms and conditions, which shall evidence an advance.
"APPLICATION FOR ADVANCE" means one or more written or telephonic requests for
an advance, in such form or forms as shall be specified by the Bank from time
to time, and which if executed by the Bank shall evidence an Advance.
"BANK DEPOSITS" shall mean all deposit accounts maintained by the Member with
the Bank (excluding safekeeping accounts expressly held for the benefit of a
third-party), all money, cash and checks, drafts, notices, bills, bills of
exchange and bonds deposited therein or credited thereto, including any
increases, renewals, extensions, substitutions and replacements, whether or
not such instruments have been posted to any such deposit account, and all
statements, certificates, passbooks and instruments representing any such
deposit account.
"CAPITAL STOCK" means all of the capital stock of the Bank owned by the
Member, and all payments which have been or hereafter are made on account of
subscriptions to, and all unpaid dividends on, such Capital Stock.
Form APSP-A-Standard Page 1 of 16 April 1994
"COLLATERAL" means all assets of the Member of any kind or nature whatsoever,
whether tangible or intangible, including without limitation, all Capital
Stock, Bank Deposits, Mortgage Collateral, Securities Collateral, and Other
Collateral, all cash and cash equivalents, all insurance proceeds, all tax
refunds, all proceeds of any of the foregoing, and all collections on any and
all of the foregoing, which are now or hereafter pledged to the Bank pursuant
to Section 3.01 hereof. It also means, including without limitation, any of
the foregoing which have previously been assigned, transferred or pledged to
the Bank by the Member as collateral for loans or other extensions of credit
prior to the date hereof, all of such assets in which a security interest is
granted pursuant to the terms hereof or in which a security interest is
hereafter assigned, transferred, granted, or pledged pursuant to the terms
hereof.
"COLLATERAL POLICY" shall mean the Bank's Collateral Policy as stated in the
Credit Policy Manual, policy statement or operating circulars of the Bank, as
in effect from time to time.
"COLLATERAL REQUIREMENT" means such aggregate Market Value (or unpaid
principal balance) of Eligible Collateral as is specified in the Bank's
Collateral Policy or as may be otherwise specified in writing by the Bank from
time to time as being the collateral maintenance level the Member must
maintain hereunder. The Bank may increase or decrease the Collateral
Requirement at any time for, including without limitation, specific collateral
listings, physical possession requirements, and where applicable, blanket
collateral requirements.
"CREDIT POLICIES" shall mean the Bank's Credit Policy Manual, policy
statements, or operating circulars relating to Advances and Other Credit
Products offered by the Bank, all as in effect from time to time.
"ELIGIBLE COLLATERAL" means Collateral other than Capital Stock which: (I)
meets the definition of Eligible Collateral under the Bank's Collateral
Policy, including without limitation one-to-four family whole mortgage loans,
government and agency securities, private mortgage-backed securities, and Bank
Deposits; (II) is owned by the Member free and clear of any liens,
encumbrances or other interests other than the assignment to the Bank
hereunder; (III) has not been in default within the most recent 12-month
period provided that in the case of Mortgage Collateral, mortgage payments
that are overdue by more than sixty (60) days shall not be included within
Eligible Collateral; (IV) in the case of Mortgage Collateral, relates to
residential real property which is covered by fire, hazard, and where
applicable, flood insurance in an amount at least sufficient to discharge the
mortgage loan in full in case of loss and as to which all real estate taxes
are current; and (V) in the case of Mortgage Collateral, does not secure an
indebtedness on which any director, officer, employee, attorney or agent of
the Member or of any Federal Home Loan Bank is personally liable. The Bank may
change the definition of Eligible Collateral from time to time, and the Bank's
determination of Eligible Collateral shall be conclusive.
"INDEBTEDNESS" means all obligations, liabilities or indebtedness of the
Member to the Bank, due or to become due, direct or indirect, absolute or
contingent, joint or several, now existing or hereafter at any time created,
arising or incurred under this Advances Agreement, or any Advice of Credit,
Application for Advance, Other Credit Product Agreements, Advances, Other
Credit Products, Bank Deposits, including any overdrafts or other charges in
connection therewith. Indebtedness also means any obligations for any other
services (including without limitation, safekeeping, operating and other
correspondence services) provided by the Bank, including any applications,
commitments, other agreements or documents relating to the foregoing, any
amendments to any of the foregoing agreements or documents and any obligations
under indemnification provisions in any such agreements or documents, and any
renewal, extension or substitution of any such obligations, liabilities and
indebtedness, including attorneys' fees of the Bank in the collection thereof
and the enforcement of any remedies with respect to any Collateral.
"MARKET VALUE" means the market value of Collateral determined in a manner as
specified by the Bank from time to time. The Bank may change the method of
determining Market Value at any time which shall be consistently applied to
substantially all borrowers. The Bank's determination of Market Value shall be
conclusive.
"MORTGAGE COLLATERAL" means whole mortgage loans, Mortgage Documents and all
security agreements, guaranties, insurance policies, certificates, binders,
commitments or reports relating thereto, including title insurance, private
mortgage insurance and hazard and liability insurance, surveys, bonds,
participations, purchase commitments, hedge contracts or other agreements to
purchase, guaranty or insure any mortgage loans or securities to be issued by
the Member. Mortgage Collateral also means any other agreement, instrument or
document pertaining to, affecting or obtained by the Member in connection with
the loans covered by the Mortgage Documents, financing statements perfecting
the Mem-
Form APS P-A-Standard Page 2 of 16 April 1994
ber's security interest in any of the foregoing, certificates, evidences of
recordation, applications, underwriting materials, appraisals, notices,
opinions of counsel, loan servicing data, files, correspondence, computer
pro-grams, tapes, discs, cards, account records and all other electronically
stored or written records or materials relating to the loans covered by the
Mortgage Documents, including any and all rig his, claims, and choses in
action against or with respect to any person or entity which has provided
services to the Member in connection with any other Mortgage Collateral,
including without limitation, surveyors, appraisers, environmental engineers,
environmental assessment firms, contractors, and architects. Unless otherwise
authorized by the Bank, Mortgage Collateral shall not include mortgage
securities or loan participations.
"MORTGAGE DOCUMENTS" means mortgages, deeds of trust or other security deeds
in land and interests in real property and the improvements and fixtures
located thereon (herein "mortgages") and all notes, bonds or other instruments
evidencing loans secured thereby (herein "mortgage notes") and any endorsement
and assignments thereof to the Member.
"OTHER COLLATERAL" means such items of tangible and intangible property, other
than Capital Stock, Bank Deposits, Mortgage Collateral, and Securities
Collateral, which are offered as collateral by the Member to the Bank and
which the Bank in its discretion expressly accepts by written notice delivered
to the Member as collateral for Advances and Other Credit Products.
"OTHER CREDIT PRODUCT AGREEMENT" means a writing or electronic transmission in
such form as shall be specified by the Bank, executed by the Bank and the
Member and setting forth the obligations of the Bank and Member, including
without limitation, any Affordable Housing Program transaction, any service
confirmation, service contract, reimbursement agreement, interest rate swap
agreement, transaction, confirmation, applications, notices, advice or other
instruments between the Bank and the Member.
"OTHER CREDIT PRODUCTS" means any and all commitments or obligations under
which the Bank agrees to make Advances to the Member or payments on behalf of
or for the account of the Member, including without limitation, letters of
credit, guarantees, demand or CMS account transactions, NOW account
processing, deposit overdrafts, item processing services, coin and currency
services, safekeeping services (including security lending programs),
Affordable Housing Program transactions, correspondent banking service debits
or services charges, or other arrangements intended to facilitate transactions
between or among the Bank, the Member and third parties, or under which the
Bank enters into a credit or financial accommodation agreement or other
arrangement with the Member, including without limitation, repurchase
agreements and interest rate exchange transactions (such as interest rate swap
agreements, cap, collar and floor agreements) and such other products or
services as may be offered by the Bank from time to time pursuant to its
Credit Policies and irrespective of whether the Bank's obligation is
contingent or conditional.
"OUTSTANDING COMMITMENTS" means, at any point in time, the maximum aggregate
principal amount of Advances or payments which the Bank may be obligated to
make to the Member (or other parties) under Advance Applications or Other
Credit Product Agreements then in effect.
"SECURITIES COLLATERAL" means all securities or certificates evidencing a
direct or indirect interest in a loan or a group of loans secured by
mortgages, including without limitation, mortgage-backed securities,
collateralized mortgage obligations and real estate mortgage investment
conduits, including Federal Home Loan Mortgage Corporation mortgage
participation certificates, Federal National Mortgage Association mortgage
pass-through mortgage-backed certificates and Government National Mortgage
Association modified pass-through mortgage-backed certificates, and all
Mortgage Documents and items of Mortgage Collateral owned or otherwise
acquired by the Member relating to the loans underlying such securities or
certificates; consolidated obligations of the Federal Home Loan Bank System;
obligations of or guaranteed by the United States; and obligations of or
guaranteed by agencies or instrumentalities of the United States.
2. ADVANCES DOCUMENTATION.
SECTION 2.01. APPLICATION FOR ADVANCES.
The Member may apply for Advances or commitments by completing and submitting
an Application for Advance or requesting Other Credit Product services. The
preceding sentence notwithstanding, the Bank may in its discretion make an
Advance, make a commitment, or deliver Other Credit Products to the Member
pursuant to the Bank Act, FHFB Regulations, Credit Policies, and other Bank
procedures in effect from time to time, and by either (I) the receipt of an
oral or written application which is executed by the Bank without change, or
(II) in the case of an
Form APS P-A-Standard Page 3 of 16 April 1994
application received, completed or modified by the Bank pursuant to a
telephonic or other unsigned communication by the Member, by an Advice of
Credit writing generated by the Bank. The Member shall be estopped from
asserting any claim or defense with respect to the terms applicable to an
Advance, commitment, or Other Credit Product entered into pursuant to a
telephone application or other unsigned communication unless, within two (2)
business days of receipt of the Bank's advice, the Member delivers to the Bank
a written notice specifying the disputed term(s) or condition(s). The Bank
shall have the absolute right to rely upon the procedures established hereby
or pursuant to the terms hereof and shall have no liability to the Member for
any actions taken or omitted to be taken in connection with such procedures.
The Member agrees that it will hold the Bank and each of its employees,
officers, directors, agents, and representatives harmless from any loss,
liability or damage which the Member may suffer, including without limitation,
lost profits and attorneys' fees and disbursements, arising out of or in
connection with such procedures, absent fraud, willful misconduct, or
recklessness on the part of the Bank.
SECTION 2.02. BANK'S RECEIPT OF WRITTEN CONFIRMATIONS AND FINDINGS.
Within five (5) business days of receipt, Member agrees to execute and return
any Advice of Credit, confirmation, or Other Credit Product Agreement to the
Bank. Upon request of the Bank, the Member shall sign and deliver to the Bank
a promissory note or notes in such form as the Bank may reasonably require
evidencing any Advance. Unless otherwise requested by the Member and approved
by the Bank, each Advance shall be funded by crediting the Member's CMS
account(s) with the Bank.
SECTION 2.03. INTEREST COMPUTATIONS AND REPAYMENT OF ADVANCE~ AND OTHER CREDIT
PRODUCTS.
The Member agrees to repay each Advance or Other Credit Product in accordance
with this Advances Agreement and the terms and conditions of the Advice of
Credit or Other Credit Product Agreement. Each Advance, Advice of Credit,
Application for Advance, Other Credit Product and Other Credit Product
Agreement shall be subject to the terms of the Credit Policies and applicable
laws, regulations, and limitations, all as in effect from time to time,
including the Bank Act, the FHFB Regulations and the statements of policy and
guidelines of the FHFB, which shall be deemed to be incorporated by reference
into this Advances Agreement. Unless otherwise specified in the Bank's Credit
Policies or as may be otherwise specified in writing by the Bank from time to
time, interest shall be paid at the time of each payment of all of the
principal of each Advance on the amount of principal so repaid, and shall be
paid on the fifteenth (15th) day of each month (or the Bank's next business
day if the Bank is not open for business on the fifteenth (15th)) on the daily
outstanding principal amount of each Advance since the previous interest
payment date (other than principal amounts which have been repaid in full
since such interest payment date), in each case at the rate applicable to such
Advance as stated in the related Advice of Credit. The Member shall pay to the
Bank, immediately and without demand, interest on any past due amount owing on
any Advance or Other Credit Product at the rate in effect and being charged by
the Bank from time to time on defaults. The default rate on past due payments
of principal and interest may, at the option of the Bank, be at a rate of five
percent (5%) per annum in addition to the then highest current rate being
charged by the Bank for advances, not to exceed the highest legal interest
rate allowed under Indiana law. The Member shall maintain in the Member's CMS
account with the Bank an amount at least equal to the amounts then currently
due and payable to the Bank on outstanding Advances and Other Credit Products.
The Member hereby authorizes the Bank to debit the Member's CMS account with
the Bank for all amounts due and payable on any Advance or Other Credit
Product and for all other amounts due and payable hereunder. in the event that
the amount in the Member's CMS account is, at any time, insufficient to pay
such due and payable amounts, the Bank may without notice to the Member apply
any Bank Deposits then in the possession of the Bank to the payment of such
due and payable amounts.
SECTION 2.04. PAYMENT OF PREPAYMENT CHARGES.
Any prepayment fees or charges for which provision is made, whether under the
Advice of Credit, Other Credit Product Agreement, or otherwise, shall be
payable at the time of any voluntary or involuntary payment of the principal
of such Advance or Other Credit Product prior to the originally scheduled
maturity thereof, including without limitation, payments that are made as a
part of a liquidation of the Member or that become due as a result of an
acceleration pursuant to Section 4.01 hereof, and whether such payment is made
by the Member, by a conservator, receiver, liquidator or trustee of or for the
Member, or by any successor to or any assignee of the Member. The method of
computation for the prepayment fee, unless expressly provided for in the
applicable credit documentation, is set forth in the Credit Policies of the
Bank and may be subject to change from time to time with advance notice to the
Member.
Form APSP-A-Standard Page 4 of 16 April 1994
SECTION 2.05. RIGHT OF BANK TO MAKE PAYMENTS WITH RESPECT TO OUTSTANDING
COMMITMENTS.
In the event that there are one or more Outstanding Commitments at the time of
an Event of Default under Section 4.01 hereof, the Bank may, at its option,
make any payments due thereunder from time to time by crediting a special
account with the Bank over which the Bank has sole dominion and control.
Amounts credited to such special accounts shall be deemed to have satisfied
the Bank's obligations under the Outstanding Commitments. When all such
obligations have been satisfied, the Bank shall disburse the balance, if any,
in such account first to the satisfaction of any amounts then due and owing by
the Member to the Bank and then to the Member or its successors in interest.
Payments made pursuant to this section shall be payable on demand and shall
bear interest at the rate specified for each applicable Advance (or if such
rate is not specified, at the rate in effect and being charged by the Bank
from time to time on variable rate advances), and shall include applicable
prepayment fees.
The Bank shall not fund outstanding commitments previously made to the Member
whose access to advances is restricted by its primary federal regulator. In
addition, the Bank shall not fund outstanding commitments previously made to
the Member whose access to advances is subsequently restricted because it does
not have positive tangible capital or if the Bank deems itself insecure for
any reason as determined by the Bank in its sole discretion. The Bank shall
not honor any outstanding commitments to the Member if the Member is a savings
association that fails to maintain its status as a Qualified Thrift Lender as
such rule is defined under the applicable federal law and federal regulations
as may be in effect from time to time.
3. SECURITY AGREEMENT.
SECTION 3.01. CREATION OF SECURITY INTEREST.
As security for all indebtedness, including without limitation, all Advances
and Other Credit Products, the Member hereby assigns, transfers, and pledges
to the Bank and grants to the Bank a security interest in all Collateral, now
or hereafter owned by the Member, and all proceeds thereof, provided, however,
that Collateral that is encumbered or disposed of by the Member in conformity
with the requirements of Section 3.03(a) hereof shall not be subject to the
security interest created hereunder. Without limitation of the foregoing, all
tangible and intangible property heretofore assigned, transferred or pledged
by the Member to the Bank as Collateral for Advances and Other Credit Products
prior to the date hereof is hereby assigned, transferred and pledged to Bank
as Collateral hereunder.
SECTION 3.02. MEMBER'S REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL.
The Member represents and warrants to the Bank, as of the date hereof and as
of the date of all future Advances or Other Credit Products secured hereunder,
the following:
(a) The Member owns and has marketable title to the Collateral and has the
right and authority to grant a security interest in the Collateral and to
subject all of the Collateral to this Advances Agreement;
(b) The information contained in any certification, status report, schedule,
or other information given from time to time by the Member as to each item of
Collateral is true, accurate and complete in all material respects;
(c) The Member maintains Eligible Collateral which has a Market Value (or
unpaid principal balance) that is at least equal to the then current
Collateral Requirement and which meets the standards and requirements from
time to time established by the Bank's Collateral Policy, the Bank Act and the
FHFB Regulations, and all other applicable laws and regulations;
(d) The Member has not conveyed or otherwise created, and there does not
otherwise exist, any participation interest or other direct, indirect, legal,
or beneficial interest in any Collateral pledged under Sections 3.01,3.03(a),
and 3.04 on the part of any person or entity other than the Bank and the
Member;
(e) Except as may be approved in writing by the Bank, no account debtor or
other obligor owing any obligation to the Member with respect to any item of
Mortgage Collateral or Other Collateral has or will have any defenses,
offsetting claims, or other rights affecting the right of the Member or the
Bank to enforce such mortgage, mortgage note or promissory obligation, and no
defaults (or conditions that, with the passage of time or the giving of notice
or both, would constitute a default) exist under any such writings; and
(f) No part of any real property or interest in real property that is the
subject of Collateral contains or is subject to the effects of toxins or
hazardous materials or other hazardous substances (including those defined in
any applicable state or local law; or applicable federal law,
Form APSP-A-Standard Page 5 of 16 April 1994
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 USC 9601 et seq.; the Hazardous Materials
Transportation Act, 49 USC 1801 et seq.; the Resource Conservation and
Recovery Act, 42 USC 6901 et seq.; and in the regulations adopted and
publications promulgated pursuant to said laws), the presence of which could
subject the Bank to any liability under applicable state or Federal law or
local ordinance either at any lime that such property is pledged to the Bank
or upon the enforcement by the Bank of its security interest therein.
SECTION 3.03. COLLATERAL MAINTENANCE REQUIREMENT FOR BLANKET LIENS AND
SPECIFIC LISTINGS.
(a) The Member shall at all times maintain an amount of Eligible Collateral
which has a Market Value (or unpaid principal balance, if so required by the
Bank) that is at least equal to the then current Collateral Requirement. The
Member shall not assign, pledge, transfer, create any security interest in,
sell, or otherwise dispose of any Collateral if (I) such Collateral is held by
or on behalf of the Bank pursuant to Section 3.04 hereof, (II) such Collateral
has been provided in a specific listing of Eligible Collateral pursuant to
Section 3.03(e), (III) the Bank has otherwise perfected its security interest
in such Collateral, or (IV) at the time of or immediately after such action,
Member is not or would not be in compliance with the collateral maintenance
requirements of the first sentence of this Section 3.03(a) or is or would be
otherwise in default under this Advances Agreement. So long as Member is not
in default under this Agreement, Member shall be at liberty to sell, use,
commingle, and dispose of the Collateral or the proceeds of such 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) Collateral shall be held by the Member in trust for the benefit of the
Bank and subject to the Bank's direction and control, will not be commingled
with assets of the Member which are not Collateral, and will be physically
safeguarded by the Member in accordance with usual, customary and prudent
commercial practices but in any event with not less than the same degree of
care which the Member uses in physically safeguarding its other property and
assets of like kind and nature. Without limitation of the foregoing, Member
shall take all action necessary or desirable to protect and preserve the
Collateral and the Bank's interest therein, including without limitation, the
maintaining of insurance on property securing mortgages constituting
Collateral (such policies and certificates of insurance or guaranty relating
to such mortgages are herein called "insurance"), the collection of payments
under all mortgages and under all insurance, and otherwise assuring that the
loans comprising the Mortgage Collateral are serviced in accordance with the
standards of a reasonable and prudent mortgagee. The Member (or its agent),
acting on behalf of the Bank, shall collect all payments when due on all
Collateral. If the Bank requires under Section 3.12, the Member shall hold
such collections separate from its other monies and apply them to the
reduction of Indebtedness as it becomes due; otherwise, the Member shall be
entitled to use and dispose of all such collections in the ordinary course of
its business and in compliance with all laws, rules, and regulations.
(c) if any Collateral that was Eligible Collateral ceases to be Eligible
Collateral, the Member shall promptly notify the Bank in writing of that fact
and, if so requested by the Bank, of the reason that the Collateral has ceased
to be Eligible Collateral. The Member shall promptly specify, or deliver, as
the case may be, other Eligible Collateral having at least the same Market
Value as the Collateral so requested to be withdrawn.
(d) The Bank may review the form and sufficiency of all documents pertaining
to the Collateral. Such documents must be satisfactory to the Bank and, if
not, such Collateral may not be acceptable as Eligible Collateral or may have
a Market Value applied thereto that is less than the Market Value otherwise
applicable under the Bank's Collateral Policy, or as the Bank may specify. The
Bank may require that the Member make any or all documents pertaining to the
Collateral available to the Bank br its inspection and approval.
(e) if so requested by the Bank, Member agrees to (I) provide a specific
listing of the Eligible Collateral to Bank, (II) physically segregate Mortgage
Documents and Other Collateral which are a part of such specified Collateral
from all other property of the Member in a manner satisfactory to the Bank,
and/or (Ill) hold each Mortgage Document which is a part of Mortgage
Collateral in a separate file folder with each file folder clearly labeled
with the loan identification number and the name of the borrower(s).
Immediately upon the written request of the Bank, the Member further agrees to
clearly and legibly xxxx or stamp each Mortgage Document and each file folder
containing Mortgage Documents with the following statement (or a substantially
similar statement which has been approved in writing by the Bank): "The
Mortgage/Deed Of Trust And Note Relating To This Loan Have Been Assigned To
And Represent Collateral Of The Federal Home Loan Bank Of Indianapolis And Its
Successors And Assigns and such other statement as may be required by
Form APSP-A-Standard Page 6 of 16 April 1994
the Bank from time to time.
SECTION 3.04. DELIVERY OF COLLATERAL; PHYSICAL POSSESSION REQUIREMENTS.
(a) At any time upon the Bank's oral or written request, or at any time that
the Member becomes subject to any mandatory collateral delivery requirements
pursuant to the Collateral Policy or that may be otherwise established in
writing by the Bank, the Member shall promptly on a schedule acceptable to the
Bank deliver to the Bank, or to a custodian designated by the Bank, all
Collateral including such Eligible Collateral as may be necessary so that the
Market Value of Eligible Collateral held by the Bank, or such custodian, meets
or exceeds the Collateral Requirement at all times, and take any and all other
action as may be specified by the Bank to further evidence the perfection of
the Bank's security interest in the Collateral and to otherwise effectuate the
transactions contemplated hereby, including the signature and filing of
financing statements. Collateral delivered to the Bank shall be endorsed or
assigned in recordable form by the Member to the Bank as directed by the Bank.
With respect to Mortgage Collateral that is to be delivered hereunder, the
Member shall deliver the Mortgage Documents with necessary endorsements and
assignments relating thereto unless otherwise directed by the Bank.
Concurrently with the initial delivery of Collateral and at such other times
as provided in the Collateral Policy or as the Bank may otherwise request, the
Member will deliver to the Bank a status report and accompanying schedules,
all in form and substance satisfactory to the Bank and dated as of the then
most recent valuation date, describing the Collateral held by the Bank or its
custodian.
(b) The Member authorizes the Bank to execute and file one or more financing
statements, this Agreement, and any other documents instruments, or statements
of any kind on its behalf and without the signature of the Member in those
public offices deemed necessary by the Bank in its sole discretion to perfect
and continue the perfection of its security interest in the Collateral and to
protect, defend and further assure the grant, validity and perfection thereof.
In addition, the Member will, at its expense, deliver or cause to be delivered
such other documents as the Bank may request to secure the indebtedness
referred to herein or to further perfect, protect, and defend the security
interest granted herein.
(c) With respect to uncertificated securities pledged to the Bank as
Securities Collateral or Other Collateral hereunder, the delivery requirements
contained in this Advances Agreement shall be satisfied by the transfer of
such securities to the Bank, such transfer to be effected in such manner and
to be evidenced by such documents as shall be specified by the Bank.
(d) The Member agrees to pay to the Bank such reasonable fees and charges as
may be assessed by the Bank to cover the Bank's overhead and other costs
relating to the receipt, holding, redelivery and reassignment of Collateral
and to reimburse the Bank upon request for all recording fees and advances
incurred or made by the Bank in connection therewith (including the reasonable
compensation and the expenses and disbursements of any custodian that may be
appointed by the Bank hereunder, and the agents and legal counsel of the Bank
and of such custodian).
(e) The Member shall, upon request of the Bank, immediately take such other
actions as the Bank shall deem necessary or appropriate to perfect the Bank's
security interest in the Collateral or otherwise to obtain, preserve, protect,
enforce or collect the Collateral.
SECTION 3.05. WITHDRAWAL OR REASSIGNMENT OF COLLATERAL.
Upon receipt by the Bank of writings in form and substance satisfactory to the
Bank constituting (I) a request from the Member for the withdrawal or
reassignment of Collateral which has been delivered pursuant to Section 3.04
hereof, or as to which the Bank has otherwise perfected its security interest,
and (II) a detailed listing of the Collateral to be withdrawn or reassigned,
provided that the Bank's valuation of such delivered Collateral confirms that
the Member's Collateral Requirement will be satisfied after such withdrawal or
reassignment, then the Bank shall redeliver or reassign to the Member the
Collateral specified in Member's request. Notwithstanding anything to the
contrary herein contained, while an Event of Default hereunder shall have
occurred and be continuing, or at any time that the Bank in good xxxxx xxxxx
itself insecure, the Member may not obtain any such withdrawal or
reassignment. Further, Member agrees for specific listings provided under
Section 3.03(e) to follow the withdrawal procedures provided (or under this
Section 3.05 or as otherwise specified by the Bank.
SECTION 3.06. ADDITIONAL COLLATERAL.
The Bank may at anytime require the Member to maintain and deliver to the Bank
additional Collateral over that amount of Eligible Collateral required to meet
the Member's Collateral Requirement or substitutions of Collateral. The Member
expressly agrees to maintain and
Form APSP-A-Standard Page 7 of 16 April 1994
deliver such additional Collateral or substitutions of Collateral as the Bank
shall require.
SECTION 3.07. REPORTS; COLLATERAL AUDIT; ACCESS.
(a) in accordance with the Collateral Policy and at such other times as the
Bank may request, the Member shall furnish to the Bank, in a format
satisfactory to the Bank, a report so that the Bank may verify that the Member
maintains Eligible Collateral with a Market Value (or unpaid principal
balance, if so required by the Bank) sufficient to meet the Collateral
Requirement. if the Market Value or unpaid principal balance of Eligible
Collateral owned by the Member, free and clear of any liens or encumbrances,
shall at any time fall below the Collateral Requirement, the Member shall
immediately notify the Bank.
(b) The Member shall provide annually an audit report prepared by the
Member's external independent auditor in accordance with generally accepted
auditing standards (and in a format acceptable to the Bank) certifying that
the Member owns, free and clear of any liens or encumbrances (except for
Bank's), Eligible Collateral with a Market Value (or unpaid principal balance,
if so required by the Bank) at least equal to the Collateral Requirement, and
deliver such report to the Bank within ninety (90) days of each fiscal
year-end of the Member, including an explanation for any exceptions or
qualifications in the report or any failure to obtain such report. The Bank
reserves the right to waive the audit report requirement if Member's
Collateral is in the physical possession of the Bank or in the Bank's sole
discretion based on particular circumstances.
(c) The Member agrees that the Bank shall have access at all reasonable times
to the Collateral in the Member's possession or control and to the Member's
books and records of account relating to such Collateral. The Member shall
permit the Bank to examine, inspect, audit and take copies or make extracts
from its books and records and to discuss its affairs with its independent
auditor (or other representative) as often as the Bank may reasonably request.
(d) The Member agrees that examination reports prepared by local, state or
federal authorities may be furnished by such authorities to the Bank upon its
request, and by this Agreement, the Member authorizes and directs such
authorities to deliver such reports to the Bank and waives any objections or
restrictions thereto which it may lawfully waive. Member agrees that upon
request of the Bank, it will take any and all steps necessary to assist the
Bank in obtaining such reports from such authorities. The Bank agrees that to
the extent such reports or the information contained therein are confidential,
the Bank will use the same degree of care in keeping such reports confidential
as it applies to the Bank's own confidential information and will not
knowingly disclose any confidential information contained therein unless
required to do so by law, rules, regulations, or judicial or regulatory
process applicable to the Bank.
(e) if requested by the Bank, the Member shall furnish to the Bank a written
report covering such matters regarding the Collateral as the Bank may require,
including listing of mortgages, securities, and unpaid principal balances
thereof, and certifications concerning the status of payments on mortgages and
of taxes and insurance on property securing mortgages.
(f) The Member agrees to promptly report to the Bank any event which reduces
the principal balance of any mortgage or security by ten percent (10%) or
more, whether by prepayment, foreclosure sale, property-casualty insurance or
guaranty payment or otherwise.
(g) All Collateral and the satisfaction by the Member of the Collateral
Requirement shall be subject to audit and verification by or on behalf of the
Bank. Such audits and verifications may occur without notice during the
Member's normal business hours or upon reasonable notice at such other times
as the Bank may reasonably request. The Member shall provide to the
representatives or agents of the Bank for purposes of such audits and
verifications, access to all books and records related to transactions whether
made or contemplated under this Agreement Further, Member shall provide
adequate working facilities, at Member's expense for the Bank to conduct such
audits or verifications. The Member agrees to pay to the Bank such reasonable
fees and charges as may be assessed by the Bank to cover overhead and other
costs relating to such audit and verification. The Member further agrees that
it will prepare and deliver promptly upon request of the Bank inquiries to
Member's outside auditors, outside counsel, customers (including depositors or
borrowers), and any other person that the Bank may reasonably request, to
provide such information to the Bank as it may reasonably request in
connection with such audit and verification.
SECTION 3.08. ADDITIONAL DOCUMENTATION AND STATUS REPORTS.
The Member shall at its expense make, execute, record and deliver to the Bank
such financing statements, as-
Form APSP-A-Standard Page 8 of 16 April 1994
signments, listings, powers, notices and other documents with respect to the
Collateral and the Bank's security interest therein as directed by the Bank
and in form and substance satisfactory to the Bank Upon request, Member
agrees to give Bank verbal or written reports concerning the financial
condition or status of any regulatory action maintained against the Member,
its holding company, or any affiliated entity or affiliated person.
SECTION 3.09. BANK'S RESPONSIBILITIES AS TO COLLATERAL.
The Bank's duty as to the Collateral shall be solely to use reasonable care in
the custody and preservation of the Collateral in its possession, which shall
not include any steps necessary to preserve rights against prior parties nor
the duty to send notices, perform services, or take any action in connection
with the management of the Collateral. The Bank shall not have any
responsibility or liability for the form, sufficiency, correctness,
genuineness or legal effect of any instrument or document constituting a part
of the Collateral, or any signature thereon or the description or
misdescription, or value of property represented, or purported to be
represented, by any such document or instrument. The Member agrees that any
and all Collateral may be removed by the Bank from the state or location where
situated, and may there be dealt with by the Bank as provided in this Advances
Agreement.
SECTION 3.10. BANK'S RIGHTS AS TO COLLATERAL; POWER OF ATTORNEY.
At any time or times, at the expense of the Member, the Bank may, at its
discretion, before or after the occurrence of an Event of Default as defined
in Section 4.01 hereof, in its own name or in the name of its nominee or of
the Member, do any or all things and take any and all actions that are
pertinent to the protection of the Bank's interests hereunder and which are
lawful under the laws of the State of Indiana, or the laws of any jurisdiction
under which the Bank may be exercising its rights hereunder, including the
following:
(a) Terminate any consent given hereunder:
(b) With advance notice to Member (or its legal successor), notify obligors
on any Collateral to make payments thereon directly to the Bank;
(c) Endorse any Collateral in the Member's name;
(d) Enter into any extension, compromise, settlement, or other agreement
relating to or affecting any Collateral;
(e) Take any action the Member is required to take or which is otherwise
necessary to: (i) sign and record a financing statement or otherwise perfect a
security interest in any or all of the Collateral; or (ii) obtain, preserve,
protect, enforce or collect the Collateral;
(f) Take control of any funds or other proceeds generated by the Collateral
and use the same to reduce Indebtedness as it becomes due; and
(g) Cause the Collateral to be transferred to its name or the name of its
nominee.
The Member hereby appoints the Bank as its true and lawful attorney, with full
power of substitution, for and on behalf of the Member and in its name, place
and stead, to prepare, execute and record endorsements and assignments to the
Bank of all or any item of Collateral, giving or granting to the Bank, as such
attorney, full power and authority to do or perform every lawful act necessary
or proper in connection therewith as fully as the Member might or could do.
The Member hereby ratifies and confirms all that the Bank shall lawfully do or
cause to be done by virtue of this special power of attorney. This special
power of attorney is granted for a period commencing on the date hereof and
continuing until the discharge of all Indebtedness and all obligations of the
Member hereunder regardless of any default by the Member, is coupled with an
interest and is irrevocable for the period granted.
SECTION 3.11. SUBORDINATION OF OTHER LOANS TO MORTGAGE COLLATERAL.
The Member hereby agrees that all mortgage notes which are part of the
Mortgage Collateral and any notes secured by personal property ("personalty
notes") which may become part of the Other Collateral shall have priority in
right and remedy over any claims, however evidenced, for other loans, whether
made before or after the date of such mortgage or personalty notes which are
secured by the mortgages or security agreements securing such mortgage or
personalty notes but are not part of the Collateral, and shall be satisfied
out of the property covered by such mortgages or security agreements before
recourse to such property may be obtained for the repayment of such other
loans. To this end, the Member hereby subordinates the lien of such mortgages
and security agreements with respect to such other loans to the lien of such
mortgages and security agreements with respect to such mortgage and personalty
notes. The Member further agrees to retain possession of any promissory notes
evidencing such other loans and not to pledge assign or
Form APSP-A-Standard Page 9 of 16 April 1994
transfer the same, except that the same may be pledged to the Bank as part of
the Collateral. The Member, for itself and for any other person or entity
claiming by or through the Member, waives any and all rights which it or such
other person or entity may have to require the Bank to marshal the assets of
the Member or to otherwise prioritize or sequence any class or category of
Collateral with respect to which the Bank may pursue its rights and remedies.
SECTION 3.12. PROCEEDS OF COLLATERAL.
The Member shall collect all payments when due on all Collateral. If the Bank
so requires, the Member, as the Bank's agent, shall hold such collections
separate from its other monies in one or more designated cash collateral
accounts maintained at the Bank and apply them to the reduction of
Indebtedness as it becomes due; otherwise, the Member shall be entitled to use
and dispose of all such collections in the ordinary course of its business and
in compliance with all laws, rules, and regulations.
4. DEFAULT; REMEDIES.
SECTION 4.01. EVENTS OF DEFAULT; ACCELERATION.
In the event of the occurrence of any of the following events or conditions of
default ("Event of Default"), the Bank may at its option, by a notice to the
Member, declare all Indebtedness and accrued interest thereon, including any
prepayment tees (including without limitation, those fees charged pursuant to
Section 2.03 and 2.04), or charges which are payable in connection with the
payment prior to the originally scheduled maturity of any Indebtedness, to be
immediately due and payable without presentment, demand, protest or any
further notice:
(a) Failure of the Member to pay when due any interest on, or principal of,
any Advance or any amount payable in connection with any Other Credit Product;
or
(b) Failure of the Member to timely perform any promise or obligation or to
satisfy any condition or liability contained herein, in an Application for
Advance, Advice of Credit, or in any Other Credit Product Agreement to which
the Member and the Bank are parties; or
(c) Any representation, statement, or warranty made or furnished in any
manner to the Bank by or on behalf of the Member in connection with any
Advance or Other Credit Product or any certification of the Market Value (or
unpaid principal balance, if so required by the Bank) of Eligible Collateral
shall have been false or misleading in any material respect when made or
furnished; or
(d) Failure of the Member to maintain Eligible Collateral which has a Market
Value (or unpaid principal balance, if so required by the Bank) that is at
least equal to the then current Collateral Requirement under the applicable
blanket lien/specific listing requirements of Section 3.03 or physical
possession requirements of Section 3.04, free of any encumbrances or claims as
required herein; or
(e) The issuance of any tax levy, seizure, attachment, garnishment, levy of
execution, or other process with respect to the Collateral; or
(f) Any failure to pay or suspension of payment by the Member to any
creditor of sums due or the occurrence of any event which results in another
creditor having the right to accelerate the maturity of any indebtedness of
the Member under any security agreement, indenture, loan agreement, or
comparable undertaking; or
(g) Application for or appointment of a conservator, receiver, or trustee for
the Member or of any affiliate or subsidiary of the Member or the Member's
property, entry of a judgment or decree adjudicating the Member or any
affiliate or subsidiary of Member insolvent or bankrupt, or an assignment by
the Member or any affiliate or subsidiary of the Member for the benefit of
creditors; or
(h) Sale by the Member of all or a material part of the Member's assets or
the taking of any other action by the Member to liquidate or dissolve; or
(i) Termination of the Member's membership in the Bank, or the Member's
ceasing to be a type of financial institution that is eligible under the Bank
Act to borrow or apply for membership in the Bank; or
(j) Merger, consolidation or other combination of the Member with an entity
which is not a member of the Bank if the nonmember entity is the surviving
entity; or
(k) With respect to Advances made pursuant to Section 11 (g)(4) of the Bank
Act (12 USC 1431(g)), if the creditor liabilities of the Member, excepting
liabilities to the Bank, are increased in any manner to an amount exceeding
five percent (5%) of the Member's net assets; or
(l) Member threatens or initiates legal action to challenge an otherwise
legally enforceable provision under this Advances Agreement in an attempt to
make the Bank insecure under this Advances Agreement; or
Form APSP-A-Standard Page 10 of 16 April 1994
(m) The Bank in good faith determines that a material adverse change has
occurred in the financial condition of the Member (including its holding
company or other affiliates), or the Member fails to comply with the Bank's
Credit Policies or other applicable policies including the requirement of
creditworthiness as determined by the Bank at its sole discretion.
SECTION 4.02. REMEDIES; SET OFF; SPECIFIC PERFORMANCE.
(a) Upon the occurrence of any Event of Default, the Bank shall have all of
the rights and remedies provided by applicable law, which shall include, but
not be limited to, all of the remedies of a secured party under the Uniform
Commercial Code as in effect in the State of Indiana, Section 10 of the Bank
Act (12 USC 1430), and other applicable federal law. In addition, the Bank may
take immediate possession of any of the Collateral or any part thereof
wherever the same may be found without judicial process. The Bank may require
the Member to assemble the Collateral and make it available to the Bank at a
place designated by the Bank which is reasonably convenient to both parties.
The Bank may sell, assign and deliver the Collateral or any part thereof at
public or private sale 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 such sale. If the Collateral includes
insurance or securities which will be redeemed by the issuer upon surrender,
or any accounts or deposits in the possession of the Bank, the Bank may
realize upon such Collateral without notice to the Member. If any notification
of intended disposition of any of the Collateral is required by applicable
law, such notification shall be deemed reasonable and properly given if
mailed, postage prepaid, at least five (5) 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 order that the Bank, in its sole
discretion, may choose. The Member agrees to pay all the costs and expenses of
the Bank in the collection of the Indebtedness and enforcement of the Bank's
rights and remedies in case of default, including, without limitation,
reasonable attorneys' fees. The Bank shall, to the extent required bylaw,
apply any surplus after (I) payment of the Indebtedness, (II) provision for
repayment to the Bank of any amounts to be paid or advanced under Outstanding
Commitments, and (III) all costs of collection and enforcement, to third
parties claiming a secondary or other security interest in the Collateral,
with any remaining surplus paid to the Member. The Member shall be liable to
the Bank for any deficiency remaining.
(b) If the Indebtedness, accrued interest thereon and other amounts or
charges owing by the Member shall have become due and payable (by acceleration
or otherwise), the Bank shall have the right, at any time or from time to time
to the fullest extent permitted by law, in addition to all other rights and
remedies available to it, without prior notice to the Member, to set off
against and to appropriate and apply to such due and payable amounts any debt
owing to, and any other funds held in any manner for the account of, the
Member by the Bank, including without limitation, all Bank Deposits now or
hereafter maintained by the Member with the Bank. Such right shall exist
whether or not such debt owing to, or funds held for the account of, the
Member is matured by its terms or is accelerated by the Bank, and regardless
of the existence or adequacy of any collateral, guaranty or any other
security, right or remedy available to the Bank. The Member hereby consents to
and confirms the foregoing arrangements and confirms the Bank's rights of
banker's lien and set off. Nothing in this Advances Agreement shall be deemed
a waiver or prohibition of or restriction on the Bank's rights of banker's
lien or set off.
(c) The Member acknowledges that the breach by the Member of the provisions
of this Agreement and in particular Section 3.04 hereof would cause
irreparable injury to the Bank and that remedies at law for any such breach
will be inadequate, and consents and agrees that the Bank shall be entitled,
without the necessity of proof of actual damage, to specific performance of
the terms of this Agreement and to injunctive relief in any proceedings which
may be brought to enforce the provisions of this Agreement. The Member waives
the right to assert the defense that such breach or violation can be
compensated adequately in damages in an action of law.
5. MISCELLANEOUS.
SECTION 5.01. GENERAL REPRESENTATIONS, QTL REPORTING, WARRANTIES AND
INDEMNIFICATIONS BY THE MEMBER.
The Member hereby represents and warrants that, as of the date hereof and the
date of each Advance or Other Credit Product hereunder:
(a) The Member, if a savings association, will truly and accurately represent
and warrant its status as a Qualified Thrift Lender ("QTL") as defined by
applicable federal law on any Application for Advance or Other Credit Product
Agreement between Member and the Bank. If the Member is a savings association
and it tails the QTL test as set forth by the Office of Thrift Supervision
Regulations now in effect or as amended, and becomes ineligible
Form APSP-A.Standard Page 11 of 16 April 1994
under applicable federal law for Bank advances, the savings association Member
shall immediately provide the Bank with written notification of its
ineligibility for Bank advances. If a non-QTL member, the Member warrants that
Advances made under Section 10(a) of the Bank Act (12 USC 1430(a)), shall be
for the purposes of housing finance.
(b) The Member will truly and accurately represent and warrant the purpose of
any Advance or Other Credit Product on any Application for Advance or Other
Credit Product Agreement between Member and the Bank.
(c) The Member will promptly furnish any financial, collateral or other
information requested by the Bank in connection with any Advance or Other
Credit Product.
(d) The Member is not, and neither the execution of nor the performance of
any transactions or obligations of the Member under any Advice of Credit,
Application for Advance, Other Credit Product Agreement or this Advances
Agreement shall, with the passage of tine, the giving of notice or otherwise,
cause the Member to be: (I) in violation of its charter or articles of
incorporation, bylaws, the Bank Act, the FHFB Regulations, any other law or
administrative regulation, agreement, or any court decree; or (II) in default
or in breach of any indenture, contract, or other instrument or agreement to
which the Member is a party or by which it or any of its property is bound or
any default under, breach of, or failure to comply with any judgment, order,
decree, regulatory directive, or other process of any court or agency having
jurisdiction of or which is binding upon the Member.
(e) The Member is not in default under any Advice of Credit or Other
Credit Product Agreement with the Bank.
(f) The Member has full power and authority and has received all corporate
and governmental authorizations and approvals (including without limitation,
those required under the Bank Act and the FHFB Regulations) as maybe required
to enter into and perform its obligations under any Advice of Credit,
Application for Advance, Other Credit Product Agreement or this Advances
Agreement, and to obtain Advances and Other Credit Products.
(g) The information given by the Member in any writing provided, electronic
transmission or in any oral statement made, in connection with any Application
for Advance or Other Credit Product Agreement, is at all relevant limes true,
accurate and complete in all material respects.
(h) The Member will at all times maintain and accurately reflect the terms
of this Advances Agreement (including the Bank's security interest in the
Collateral) and all Advances and Other Credit Products hereunder on its books
and records, including evidence of necessary authorizations to effectuate
transactions under this Agreement.
(i) The Member and its successors and assigns (collectively referred to in
this Section 5.01(i) as "Member") shall indemnify and hold the Bank harmless
from and against any and all costs, claims, expenses, damages, and liabilities
with respect to any action which may be instituted by any person or entity
against the Bank as a result of any transaction, including without limitation,
Bank credit extensions, services, and Other Credit Products contemplated by
this Advances Agreement or action or nonaction arising from this Advances
Agreement, except where the same results solely from the recklessness or
willful misconduct of the Bank. In addition, the Member shall indemnify and
hold the Bank harmless from and against any and all costs, claims, expenses,
damages, and liabilities resulting in any way from the presence or effects of
any toxic or hazardous substances or materials in, on, or under any real
property or interest in real property that is subject to or included in the
Collateral. The Member also agrees to reimburse the Bank for such reasonable
fees and charges as may be assessed by the Bank to cover overhead and other
cost, including reasonable attorneys' fees, incurred either under this
indemnification provision or in the administration of this Advances Agreement,
any Advice of Credit or Other Credit Product Agreement.
SECTION 5.02. ASSIGNMENT.
The Bank may assign or negotiate to any other Federal Home Loan Bank or to any
other person or entity, with or without recourse, any Indebtedness of the
Member or participations therein, and the Bank may assign or transfer all or
any part of the Bank's right, title, and interest in and to this Advances
Agreement and may assign and deliver the whole or any part of the Collateral
to the transferee, which shall succeed to all the powers and rights and duties
of the Bank in respect thereof, and the Bank shall thereafter be forever
relieved and fully discharged from any liability or responsibility with
respect to the transferred Collateral. The Member may not assign or transfer
any of its rights or obligations hereunder (by operation of law, the
appointment of a receivership, or otherwise) without the express prior written
consent of the Bank.
SECTION 5.03. DISCRETION OF BANK TO GRANT OR DENY
Form APSP-A-Standard Page 12 of 16 April 1994
ADVANCES AND OTHER CREDIT PRODUCTS.
Nothing contained herein or in any documents or oral representations
describing or setting forth the Bank's credit programs or Credit Policies
shall be construed as an agreement or commitment on the part of the Bank to
grant Advances or extend Other Credit Products hereunder, the right and power
of the Bank in its discretion to either grant or deny any Advance or Other
Credit Product requested hereunder being expressly reserved.
SECTION 5.04. AMENDMENT; WAIVERS.
No modification, amendment or waiver of any provision of this Advances
Agreement or consent to any departure therefrom shall be effective unless
executed by the party against whom such change is asserted and shall be
effective only in the specific instance and for the purpose for which given.
No notice to or demand on the Member in any case shall entitle the Member to
any other or further notice or demand in the same, or similar or other
circumstances. Any forbearance, failure or delay by the Bank in exercising any
right, power or remedy hereunder shall not be deemed to be a waiver thereof,
and any single or partial exercise by the Bank of any right, power or remedy
hereunder shall not preclude the further exercise thereof. Every right, power
and remedy of the Bank shall continue in full force and effect until
specifically waived by the Bank in writing.
SECTION 5.05. JURISDICTION; LEGAL FEES.
In any action or proceeding brought by the Bank or the Member in order to
enforce any right or remedy under this Advances Agreement, the parties hereby
consent to, and agree that they will submit to, the jurisdiction of the United
States District Court for the Southern District of Indiana or, if such action
or proceeding may not be brought in federal court, the jurisdiction of the
courts of the State of Indiana located in Xxxxxx County. The Member agrees
that, if any action or proceeding is brought by the Member seeking to obtain
any legal or equitable relief against the Bank under or arising out of this
Advances Agreement or any transaction contemplated hereby, and such relief is
not granted by the final decision, after any and all appeals, of a court of
competent jurisdiction, the Member shall promptly pay upon demand all
attorneys' fees and other costs incurred by the Bank in connection therewith.
Further, the Member agrees that if any action or proceeding is brought by the
Bank in connection with the successful enforcement of any of the Bank's rights
or remedies hereunder or otherwise or if the services of legal counsel are
required in connection with the administration of the credit facilities
contemplated hereby, the Member shall pay promptly upon demand all attorneys'
fees and other costs incurred by the Bank in connection therewith.
SECTION 5.06. WAIVER OF JURY TRIAL.
To the extent allowed by law, the Member hereby waives the right to a jury
trial in any action or proceeding brought by or against the Member regarding
this Agreement, the Collateral, Other Credit Products, or the credit
facilities contemplated hereby.
SECTION 5.07. NOTICES.
Except as provided in the last sentence of this Section 5.07, any written
notice, advice, request, consent or direction given, made or withdrawn
pursuant to this Agreement shall be either in writing or transmitted
electronically and reproduced mechanically by the addressee and shall be given
by first class mail, postage prepaid, or by telecopy or other facsimile
transmission, or by private courier or delivery service. Except for notices
made under Section 4.02, all non-oral notices shall be deemed given when
actually received at the principal office of the Bank or the Member, as
appropriate. All notices shall be designated to the attention of an office or
section of the Bank or of the Member if the Bank or the Member has made a
request for the notice to be so addressed. Any notice by the Bank to the
Member pursuant to Sections 2.01, 3.03, 3.04 or 3.05 hereof may be oral and
shall be deemed to have been duly given to and received by the Member at the
time of the oral communication.
SECTION 5.08. SIGNATURES OF MEMBER; ACCEPTANCE BY BANK.
(a) For purposes of this Advances Agreement, documents shall be deemed signed
by the Member when a signature of an authorized signatory or an authorized
facsimile thereof appears on the document. The Bank may rely on any signature
or facsimile thereof which reasonably appears to the Bank to be the signature
of an authorized person, including signatures appearing on documents
transmitted electronically to and reproduced mechanically at the Bank. The
Secretary, the Cashier, the Assistant Secretaries, or the Assistant Cashiers
of the Member shall from time to time certify to the Bank on forms provided by
the Bank the names and titles of the persons authorized to apply on behalf of
the Member to the Bank for Advances and Other Credit Products. Such
certifications are incorporated herein and made a part of this Advances
Agreement and shall continue in effect until expressly revoked by the Member
notwithstanding that
Form APSP-A-Standard Page 13 of 16 April 1994
subsequent certifications may authorize additional persons to act for and on
behalf of Member.
(b) This Agreement shall only be binding upon the Bank when accepted and
executed by the Bank by two duly authorized officers and shall be deemed
accepted by and delivered to the Bank at its home office in Indianapolis,
Indiana.
SECTION 5.09. APPLICABLE LAW; SEVERABILITY.
In addition to the terms and conditions specifically set forth herein and in
any Advice of Credit or Other Credit Product Agreement between the Bank and
the Member, this Advances Agreement and all Advances and Other Credit Products
extended hereunder shall be governed by the statutory and common law of the
United States and, to the extent federal law incorporates or defers to state
law, the laws (exclusive of the choice of law provisions) of the State of
Indiana, including the Uniform Commercial Code as in effect in the State of
Indiana. In the event that any portion of this Advances Agreement conflicts
with applicable law or the Credit Policies, such conflict shall not affect
other provisions of this Advances Agreement which can be given effect without
the conflicting provisions, and to this end the provisions of this Advances
Agreement are declared to be severable.
SECTION 5.10. INTEREST RATE LIMITATIONS.
Notwithstanding anything contained herein to the contrary, the obligation of
the Member to make payments of interest shall be subject to the limitation
that payments of interest shall not be required to be made to the Bank to the
extent that its receipt thereof would not be permissible under the law or laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank. Any such payments of interest which are not made as a
result of the limitation referred to in the preceding sentence shall be made
by the Member to the Bank on the earliest interest payment date or dates on
which the receipt thereof would be permissible under the laws applicable to
the Bank limiting rates of interest which may be charged or collected by the
Bank.
SECTION 5.11. SUCCESSORS AND ASSIGNS.
This Advances Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the Member and the Bank, provided that the Member
may not assign any of its rights or obligations hereunder (by operation of
law, the appointment of a receivership, or other) without the prior written
consent of the Bank. The Bank may sell, transfer or assign or grant
participations in Advances or Other Credit Products.
SECTION 5.12. REMEDIES CUMULATIVE.
All rights and remedies provided herein or otherwise at law or in equity shall
be cumulative, and are in addition to, and not exclusive of, any rights or
remedies provided by law, including without limitation, the rights and
remedies of a secured party under federal law and the Uniform Commercial Code
as it is in effect from time to time in Indiana, including the right of the
Bank to retain the Collateral in satisfaction of the Indebtedness. The
exercise of one or more thereof shall not preclude, or be deemed an election
of remedies against, any other remedy, right or privilege contained herein or
provided to the Bank by law, rule, or regulation or at equity.
SECTION 5.13. RECORDS OF BANK PRESUMED ACCURATE.
The books and records of the Bank with respect to the Indebtedness, the
Member's accounts or any other obligations of the Member hereunder or
otherwise owing to the Bank shall be presumed to be accurate, complete, and
binding upon the Member, absent fraud or willful misconduct on the part of the
Bank with respect to such account or obligation.
SECTION 5.14. ENTIRE AGREEMENT.
This Advances Agreement and the other documents referenced herein relating to
Advances and Other Credit Products embody the entire Agreement and
understanding between the parties hereto relating to the subject matter
hereof. This Advances Agreement amends, restates and supersedes all prior
agreements between such parties which relate to such subject matter, and all
Advances and Other Credit Products made by the Bank to the Member prior to the
execution of this Advances Agreement shall be governed by the terms of this
Advances Agreement and not by the terms of the prior agreement. The Agreement
and the other documents contemplated hereby or delivered in connection
herewith shall be construed consistently with each other in order to best
effectuate the intent of the Member and the Bank in entering into the
relationships contemplated by all these agreements. The agreements referenced
herein constitute the sole and entire agreement of the parties and no
statement or promise has been made with respect to the subject matter of these
agreements other than as expressed herein. In the event of a conflict between
the terms of this Agreement and any of the other such documents, the
provisions of this Agreement shall con-
Form APSP-A-Standard Page 14 of 16 April 1994
trol, except with respect to any note, whose respective terms shall control.
IN WITNESS WHEREOF, the Member and the Bank have caused this Advances
Agreement to be signed in their names by their duly authorized officers as of
the date first above mentioned.
People's Trust Company FEDERAL HOME LOAN BANK OF INDIANAPOLIS
--------------------------------
(Full Name of Member)
By: /s/ XXXXX X. XXXXX XX. By:
----------------------------- ----------------------------
Its: President Its:
----------------------------- ----------------------------
By: /s/ XXXX X. XXXXXX By:
----------------------------- ----------------------------
Its: Sr. Vice President/Controller Its:
----------------------------- ----------------------------
Form APSP-A-Standard Page 15 of 16 April 1994
FEDERAL HOME LOAN BANK OF INDIANAPOLIS
--------------------------------------
MEMBER ACKNOWLEDGMENT
AND NOTARIZATION
State of Indiana )
) SS:
County of Franklin )
On this 13th day of February, 1995, before me personally came Xxxxx X.
Xxxxx, Xx. and Xxxx X. Xxxxxx, to me known, who, being by me duly sworn, did
depose and state that they are the President and Sr. Vice President/Controller
of said Member; and that they signed their names thereto by order of the Board
of Directors or other governing body of said Member and that said President
and Sr. Vice President/Controller are duly authorized and acknowledge the
execution of said instrument to be the voluntary act and deed of said member.
/s/ Xxxxxxx Xxx Xxxxx (SEAL)
------------------------------
Notary Public Signature ----------------------
Xxxxxxx Xxx Xxxxx
------------------------------
Printed Name
My Commission expires: 1/26/96
-------------
My County of Residence: Franklin
------------
Form APSP-A-Standard Page 16 of 16 April 1994
