1
EXHIBIT 10.48
[FEDERAL HOME LOAN BANK OF TOPEKA LOGO]
Advance, Pledge and Security Agreement
(Specific Pledge)
- --------------------------------------------------------------------------------
Effective Date: 4-12-00
------------
Institution: American Investors Life Insurance Company, Inc.
----------------------------------------------------
Address: 555 South Kansas Avenue
-----------------------------
Topeka, KS 66603
-----------------------------
This Advance, Pledge and Security Agreement (Agreement) is made as of the
effective date set forth above by and between the Federal Home Loan Bank of
Topeka (Bank) and the above-described institution (Institution).
CONTENTS
DEFINITIONS 4.3 Power of Attorney
1.1 Defined Terms 4.4 Payment of Prepayment Charges
ADVANCES 4.5 Default Rate
2.1 Advance Procedures; Demand 4.6 Sale of Collateral
Deposit Account MISCELLANEOUS
2.2 Estoppel 5.1 General Representations and
2.3 Interest Warranties
2.4 Funding Commitments; Ineligibility 5.2 FIRREA Covenant
SECURITY AGREEMENT 5.3 Good Faith; Liability of Bank
3.1 Specific Pledge; Required Collateral 5.4 Assignment of Indebtedness
Amount 5.5 Discretion to Deny Advances
3.2 Perfection of Security Interest 5.6 Access to Bank Records
3.3 Institution's Representations and
Warrants Concerning Collateral 5.7 Amendments; Waivers
3.4 Release of Collateral 5.8 Jurisdiction; Legal Fees
3.5 Reports, Audits and Access 5.9 Applicable Law; Severability
3.6 Bank's Responsibility as to Collateral 5.10 Successors and Assigns
3.7 Application of Payments 5.11 Notices
DEFAULT; REMEDIES; POWER OF ATTORNEY 5.12 Entire Agreement
4.1 Events of Default; Acceleration 5.13 Counterparts
4.2 Remedies
THE BANK AND THE INSTITUTION AGREE AS FOLLOWS:
DEFINITIONS
1.1 DEFINED TERMS. The following terms shall have the following meanings:
a. "Act" means the Federal Home Loan Bank Act, as amended, 12 U.S.C.
1421, et. seq.
b. "Advance" or "Advances" means any and all loans or other extensions
of credit, including without limitation Swap Transactions, letters of
credit, guarantees, insurance company funding agreements, or other
arrangements intended to facilitate transactions between the
Institution and third parties (but excluding any obligations that the
Bank may now or hereafter have to honor such as items or transfer
orders under a depository or similar agreement between the
Institution and the Bank), and irrespective of whether the Bank's
obligation under such agreement is contingent upon the occurrence or
nonoccurrence of any condition, and including all loans or extensions
of credit by the Bank to the Institution prior to the date hereof.
c. "Business Day" means any day that the Federal Reserve Bank of Kansas
City is open for business.
Page 1 of 9
2
d. "Capital Stock" means all of the capital stock of the Bank owned by
the Institution and all payments that have been or hereafter are made
on account of any subscription for such capital stock and all unpaid
dividends on such capital stock.
e. "Collateral" means all property, including the proceeds thereof,
previously assigned, transferred or pledged to the Bank by the
Institution as collateral for Advances and all property assigned,
transferred or pledged to the Bank pursuant to Section 3.1 of the
Agreement or otherwise.
f. "Collateral Policy" means the collateral policy of the Bank as
published from time to time.
g. "Commitment" or "Commitments" means any agreement under which the
Bank is obligated to make an Advance to the Institution.
h. "Confirmation" means a written or machine-readable electronic
transmission issued by the Bank from time to time confirming an
Advance, including the notation of the Advance on the Institution's
demand deposit account statement and schedules to insurance company
funding agreements.
i. "Credit Policy" means the credit policy of the Bank as published from
time to time.
j. "Eligible Collateral" means Collateral, other than Capital Stock,
which: (1) qualifies as security for Advances under the terms and
conditions of the Act and the Regulations and satisfies the
requirements that may be established by the Bank from time to time;
and (2) is owned by the Institution free and clear of any liens,
encumbrances or interests other than the interest of the Bank
hereunder.
k. "Indebtedness" means all indebtedness of the Institution to the Bank,
whether now outstanding or hereafter incurred, including all Advances
and any other sums owed by the Institution to the Bank pursuant to
any provision hereof, and all other obligations and liabilities of
the Institution to the Bank.
l. "Lending Value" means the value of the Bank shall from time to time,
in its sole discretion, ascribe to the various type of Collateral.
m. "Regulations" means the regulations of the Federal Housing Finance
Board or its successor, as amended, 12 CFR Chapter IX.
n. "Required Collateral Amount" means the aggregate dollar amount that
the Bank may specify from time to time with respect to each Advance
and any other obligation or liability of the Institution to the Bank.
The Bank may increase or decrease the Required Collateral Amount at
any time.
o. "Swap Transaction" or "Swap Transactions" means any and all interest
rate swaps, interest rate caps, floors or collars, currency exchange
transactions or similar transactions entered into between the Bank
and the Institution.
ADVANCES
2.1 ADVANCE PROCEDURES; DEMAND DEPOSIT ACCOUNT. All Advances are subject to
and governed by the Credit Policy and the Collateral Policy, both of which
are incorporated in and made a part of this Agreement. Periodically, the
Institution may apply to the Bank for Advances in accordance with the
procedures established by the Bank. Each Advance shall be evidenced by a
Confirmation. Unless otherwise agreed to in writing by the Bank, each
Advance shall be made by crediting a demand deposit account of the
Institution with the Bank and payments of interest, principal or other
amounts owed the Bank shall be made by debiting such account. The
Institution shall maintain sufficient available balances in the account to
fund all payments due the Bank.
2.2 ESTOPPEL. Failure of the Institution to deliver a written notice to the
Bank specifying any disputed term or condition of an Advance within ten
(10) Business Days after the Bank mails by first-class mail or transmits
electronically a Confirmation to the Institution shall constitute the
agreement and acknowledgment by the Institution that the terms and
conditions of the Advance as stated in the Confirmation are valid and are
those that the Institution requested and by which the Institution agreed
to be bound. The Institution shall thereafter be estopped from asserting
any claim or defense with respect to the repayment of such Advance and
all interest, fees and other charges thereon or in connection therewith.
2.3 INTEREST. The Institution agrees to pay interest on each Advances at the
applicable rate per annum provided in the Confirmation pertaining thereto,
as specified in the Bank's Credit Policy for such type of Advance and as
otherwise specified herein. Accrued interest on each Advance shall be due
and payable at the times specified in the Bank's Credit Policy,
Confirmation or as otherwise specified in writing by the Bank.
2.4 FUNDING COMMITMENTS; INELIGIBILITY. In the event the Institution's
access to Advances is restricted by any applicable law or regulatory
directive, the Bank shall not fund outstanding Commitments to the
Institution. The
Page 2 of 9
3
Institution shall immediately notify the Bank if it becomes ineligible for
Advances under any applicable law or regulatory directive.
SECURITY AGREEMENT
3.1 SPECIFIC PLEDGE; REQUIRED COLLATERAL AMOUNT.
a. As security for all present and future indebtedness, the Institution
hereby assigns, transfers and pledges to the Bank, and grants to the
Bank a security interest in, the following: (1) all Capital Stock now
or hereafter owned by the Institution; (2) all deposit accounts held by
the Institution at the Bank; (3) all property specified and described
by the Institution from time to time on schedules or forms prescribed
by the Bank; (4) all property delivered from time to time by the
Institution to the Bank or the Bank's custodian; and (5) the proceeds
of any of the foregoing.
b. The institution shall at all times have granted the Bank a security
interest in an amount of Eligible Collateral that has a Lending Value
at least equal to the Required Collateral Amount applicable to the
Institution.
c. While the Institution may, except as provided below, retain the
documents evidencing any Collateral it has pledged to the Bank, it is
specifically understood and agreed that the holding of such documents
is solely for the benefit, and subject to the direction and control, of
the Bank.
d. The Institution shall not assign, pledge, transfer, create any security
interest in, sell or otherwise dispose of any Collateral without the
prior written consent of the Bank.
3.2 PERFECTION OF SECURITY INTEREST.
a. Immediately upon the Bank's request, and from time to time thereafter,
the Institution shall take all actions as the Bank shall reasonably
deem necessary or appropriate to perfect the Bank's security interest
in the Collateral, including but not limited to the making, execution
and delivery to the Bank of such assignments, listings, powers,
financing statements or other instruments and documents as the Bank may
require.
b. The Institution agrees to pay to the Bank upon demand such fees and
charges as may be assessed by the Bank to cover overhead and other
costs relating to the perfection of the Bank's security interest in the
Collateral (including without limitation the receipt, holding and
redelivery of Collateral and to reimburse the Bank upon request for all
recording fees) and other reasonable expenses, disbursements and
advances incurred or made by the Bank in connection therewith
(including the reasonable compensation and the expenses and
disbursements of any bailee that may be appointed by the Bank
hereunder, and the agents and legal counsel of the Bank and of such
bailee).
c. In the event any Collateral that was Eligible Collateral ceases to be
Eligible Collateral, the Institution will promptly notify the Bank in
writing of the reason such Collateral has ceased to be Eligible
Collateral and request the release of such Collateral pursuant to
Section 3.4.
d. The form and sufficiency of all documents pertaining to the Collateral
shall be satisfactory to the Bank. Any Collateral that is not
satisfactory to the Bank may be rejected by the Bank or may have a
value ascribed thereto that shall be less than the value normally
ascribed thereto under the Bank's Collateral Policy, or as the Bank may
otherwise specify.
e. The Bank may take such steps as it reasonably deems necessary to
protect its security position with respect to outstanding Advances,
including requiring the pledging and/or perfection of additional
collateral whether or not such additional collateral is Eligible
Collateral.
3.3 INSTITUTION'S REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL. The
Institution represents and warrants to the Bank, as of the date hereof and
as of each date on which there shall be an outstanding Advance or
Commitment, as follows:
a. The Institution owns and has title to the Collateral and has the right
and authority to grant a security interest to the Bank in the
Collateral and to subject all of the Collateral to this Agreement.
b. All the Collateral that the Institution represents to be Eligible
Collateral meets the standards and requirements with respect thereto
from time to time established by the Bank, the Act and the Regulations.
c. The Institution 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 in favor of
anyone or any entity other than the Bank and the Institution except as
specifically communicated in writing to the Bank.
3.4 RELEASE OF COLLATERAL. Upon receipt by the Bank of a written request from
the Institution asking for the release of any Collateral, the Bank shall
promptly release to the Institution, at the Institution's expense, the
Collateral specified
Page 3 of 8
4
in said written request. Notwithstanding anything to the contrary herein,
while an Event of Default hereunder shall have occurred and be continuing,
or at any time that the Bank's records indicate that such release would
reduce the Lending Value of the Institution's Collateral below the Required
Collateral Amount, or at any time that the Bank reasonably and in good
faith deems itself insecure, the Bank may refuse such request.
3.5 REPORTS, AUDITS AND ACCESS.
a. The Institution shall provide the Bank with written periodic reports
containing such information on the Collateral as the Bank shall require
from time to time, including listings of mortgages and securities,
unpaid principal balances thereof and certifications concerning the
status of payments of mortgages and of taxes and insurance on property
securing mortgages. The Institution shall give the Bank access at all
reasonable times to Collateral in the possession of the Institution and
to the books and records of account of the Institution relating to the
Collateral for the purpose of permitting the Bank to examine, verify or
reconcile the Collateral and the reports of the Institution to the Bank
thereon.
b. All Collateral and the satisfaction by the Institution of the Required
Collateral Amount shall be subject to periodic audit and verification
by or on behalf of the Bank. Such audits and verifications may occur
without notice during the Institution's normal business hours or upon
reasonable notice at such other time as the Bank may reasonably
request. The Institution shall provide access to, and shall make
adequate working facilities available to, the representations or agents
of the Bank for purposes of such audits and verifications. The
Institution 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 audits and verifications.
c. The Institution shall furnish to the Bank annually, if the Bank
requests, an audit report prepared by an external independent auditor
of the Institution in such form as the Bank may require certifying the
accuracy of any or all information required to be given to the Bank by
the Institution with respect to the Collateral.
d. The Institution shall also furnish to the Bank, on an annual basis,
copies of any available audited financial statements, management
letters and directors' exams in regard to the Institution.
e. If the Lending Value of the Eligible Collateral pledged by the
Institution shall at any time fall below the Required Collateral
Amount, the Institution shall immediately notify the Bank.
3.6 BANK'S RESPONSIBILITY AS TO COLLATERAL. In the event that the Bank shall
take possession of any Collateral hereunder, the Bank's duty as to such
Collateral shall be solely to use reasonable care in the custody and
preservation of the Collateral in its possession. This duty shall not
require the Bank to take any steps necessary to preserve rights against
prior parties or the duty to send notices, perform services or take any
action in connection with the management of the Collateral. The Institution
shall make and maintain copies, microfilm or other recordings of all
Collateral delivered to the Bank.
3.7 APPLICATION OF PAYMENTS. The Bank may, in its sole discretion, apply any
payments by or recovery from the Institution, which are received by the
Bank without any designation from the Institution (at the time of such
payment or recovery) as to the intended application thereof, at such time
and in such manner and order of priority as the Bank shall deem fit.
DEFAULT; REMEDIES; POWER OF ATTORNEY
4.1 EVENTS OF DEFAULT; ACCELERATION. Upon the occurrence of and during the
continuation of any of the following events or conditions of default
(Event of Default), the Bank may at its option and notwithstanding any
other provision hereof, by a notice to the Institution, declare all
Indebtedness, including but not limited to any accrued interest and any
prepayment charges that are provided for upon payment of an Advance before
the date(s) scheduled for repayment, to be immediately due and payable,
without presentment, demand, protest or any further notice:
a. Failure of the Institution to keep sufficient available balances on
deposit with the Bank to pay any interest, principal or other amount
then due and owing to the Bank one (1) Business Day after the Bank
gives notice to the Institution that its available balances on deposit
with the Bank are insufficient to pay amounts then due and owing; or
b. Continued failure of the Institution to perform any promise or
obligation or to satisfy any condition or liability contained herein
for five (5) Business Days after the Bank gives notice to the
Institution of such failure; or
c. Continued failure of the Institution to provide adequate Eligible
Collateral as required by the Bank for three (3) Business Days after
the Bank gives notice to the Institution of such failure unless the
Institution shall
Page 4 of 9
5
reduce its Required Collateral Amount during such three (3) Business
Day period such that the Institution has sufficient Eligible
Collateral; or
d. Any suspension of payment by the Institution to any creditor of sums
due or the occurrence of any event that results (or which with the
giving of notice or passage of time or both will result) in
acceleration of the maturity of any indebtedness of the Institution to
others under any security agreement, indenture, loan agreement or other
undertaking, provided that such indebtedness is a material amount with
respect to the Institution and is not subject to a good faith dispute;
or
e. Appointment of a trustee, conservator, receiver, liquidator, custodian
or similar official for the Institution, or for substantially all of
the Institution's property, or the notice of a judgment, decree or
administrative decision adjudicating the Institution insolvent or
bankrupt; or
f. Sale by the Institution of all or substantially all of the
Institution's assets or the taking of any action by the Institution to
liquidate or dissolve; or
g. Termination of the Institution's membership in the Bank or the
Institution's ceasing to be a type of financial institution that is
eligible under the Act to become a member of the Bank; or
h. Merger, consolidation or other combination of the Institution with an
entity that is not a member of the Bank if the nonmember entity is the
surviving entity in such transaction.
4.2 REMEDIES. 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 Kansas. The
Bank may take immediate possession of any of the Collateral or any part
thereof wherever the same may be found. The Bank may sell, assign and
deliver the Collateral or any part thereof to 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 instruments or
securities that 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 Institution. 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 ten (10) Business Days before any such
disposition to the address of the Institution appearing on the records of
the Bank. Upon the occurrence of any Event of Default, the Bank may, in its
sole discretion, apply any payment by or recovery from the Institution or
any sum realized from Collateral, at such time and in such manner and order
of priority as the Bank shall deem fit, irrespective of any manifestation
of any contrary intention or desire on the part of the Institution or the
provisions of any other agreement between the Bank and the Institution. The
Institution agrees that the Bank may exercise its right of setoff upon the
occurrence of an Event of Default in the same manner as if the Advances and
Commitments were unsecured. Notwithstanding any other provision hereof,
upon the occurrence of any Event of Default at any time when all or part of
the obligations of the Institution to the Bank hereunder shall be the
subject of any guarantee by a third party for the Bank's benefit and there
shall be other outstanding obligations of the Institution to the Bank that
are not so guaranteed but that are secured by the Collateral, then any sums
realized by the Bank from the Collateral, or from any other Collateral
pledged or furnished to the Bank by the Institution under any other
agreement, shall be applied first to the satisfaction of such other
nonguaranteed obligations and then to the Institution's guaranteed
obligations hereunder. The Institution agrees to pay all the costs and
expenses of the Bank in the collection of the Indebtedness and enforcement
and preservation of the Bank's rights and remedies in case of default,
including, without limitation, reasonable attorneys' fees. The Bank in its
discretion may apply any surplus after payment of Indebtedness, provision
for repayment to the Bank of any amounts to be paid under outstanding
Commitments and all costs of collection and enforcement, to third parties
claiming a secondary security interest in the Collateral, with any
remaining surplus paid to the Institution. The Institution shall be liable
to the Bank for any deficiency remaining.
4.3 POWER OF ATTORNEY. After the occurrence of a default, the Bank may in its
discretion; in its own name or in the name of its nominee or of the
Institution, do any or all things and take any and all actions that are
pertinent to the protection of the Bank's Interest hereunder and, if such
actions are subject to the laws of a state, are lawful under the laws of
the State of Kansas, including the following:
a. Terminate any consent given hereunder;
b. Notify obligors on any Collateral to make payments thereon directly to
the Bank;
Page 5 of 9
6
c. Endorse any Collateral that is in the Institution's name or that has
been endorsed by others to the Institution's name;
d. Enter into any extension, compromise, settlement or other agreement
relating to or affecting any Collateral;
e. Take any action the Institution is required to take or that is
otherwise necessary to: (1) sign and record a financing statement or
otherwise perfect a security interest in any or all of the Collateral;
or (2) to obtain, preserve, protect, enforce or collect the Collateral;
f. Take control of any funds or other proceeds generated by or arising
from the Collateral and use the same to reduce indebtedness as it
becomes due; and
g. Cause the Collateral to be transferred to the Bank's name or the name
of its nominee.
The Institution hereby appoints the Bank as its true and lawful attorney,
for and on behalf of the Institution 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 (including the identification and listing, by
exhibit prepared by the Bank or otherwise, of mortgage loans constituting
such 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 Institution could or might do. The
Institution 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 of
Institution's default and continuing until the discharge of all
Indebtedness and all obligations of the Institution hereunder, is coupled
with an interest and is irrevocable for the period granted. As the
Institution's true and lawful attorney-in-fact, the Bank shall have no
responsibility to take any steps necessary to preserve rights against prior
parties or the duty to send notices, perform services or take any action in
connection with the management of the Collateral.
4.4 PAYMENT OF PREPAYMENT CHARGES. Any prepayment fees or charges for which
provision is made, whether under a Confirmation or otherwise, with respect
to any Advance shall be payable at the time of any voluntary or involuntary
payment of the principal of such Advance prior to the originally scheduled
maturity thereof. This shall include, without limitation, payments that are
made in connection with the liquidation of the Institution or that become
due as a result of an acceleration by the Bank pursuant to Section 4.1,
whether such payment is made by the Institution, by a trustee, conservator,
receiver, liquidator, custodian or similar official, of or for the
Institution or by any successor to or any assignee of the Institution. The
Institution acknowledges and agrees that the damages incurred by the Bank
due to a prepayment of an Advance will be difficult to ascertain at the
time of such prepayment and, in lieu thereof, the Institution and the Bank
agree that the formula for calculation of the prepayment fee set forth in
the Confirmation or in the Credit Policy at the time the Advance is issued
constitutes a fair, reasonable and good faith estimate of the damages
suffered by the Bank because of such prepayment and is therefore payable as
a prepayment fee or charge.
4.5 DEFAULT RATE. Any payment of principal or interest or any other sum due
hereunder, if not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, to the maximum extent
permitted by law, at a rate per annum for each day during the period
commencing on the due date thereof until such amount shall be paid in full
equal to 315 basis points above the previous business day's daily effective
federal funds rate as published in Federal Reserve Statistical Release
H.15, or any equivalent successor rate, release or publication.
4.6 SALE OF COLLATERAL. In view of the possibility that federal and state
securities and other laws may impose certain restrictions on the method by
which sale of the Collateral may be effected, the Bank and the Institution
agree that any sale of the Collateral as a result of an Event of Default
shall be deemed "commercially reasonable" irrespective of whether the
notice or manner of such sale contains provisions or imposes, or is subject
to, conditions or restrictions deemed appropriate to comply with the
Securities Act of 1933 or any other applicable federal or state securities
or other law. It is further agreed that from time to time the Bank may
attempt to sell the Collateral by means of private placement. In so doing,
the Bank may restrict the bidders and prospective purchasers to those who
will represent and agree that they are purchasing for investment only and
not for distribution or otherwise impose restrictions deemed appropriate by
the Bank for the purpose of complying with the requirements of applicable
securities laws. The Bank may solicit offers to buy such Collateral, for
cash or otherwise, from a limited number of investors deemed by the Bank to
be responsible parties who might be interested in purchasing such
Collateral. If the Bank solicits offers from at least three (3) such
investors, then the acceptance by the Bank of the highest offer obtained
therefrom (whether or not three (3) offers are obtained) shall be deemed to
be a commercially reasonable method of disposing of the Collateral.
Page 6 of 9
7
MISCELLANEOUS
5.1 GENERAL REPRESENTATIONS AND WARRANTIES. The Institution hereby represents
and warrants that to the best of its knowledge as of the date hereof and
as of each date on which there shall be an outstanding Advance or
Commitment:
a. The Institution is not now, and neither the execution of nor the
performance of any of the transactions or obligations of the
Institution under the Agreement shall, with the passage of time, the
giving of notice, or otherwise, cause the Institution to be: (1) in
violation of its charter or articles of incorporation, by-laws, the
Act or the Regulations, any other law or administrative regulation,
any court decree or any order of a regulatory authority; or (2) in
default under or in breach of any Indenture, contract, or other
instrument or agreement to which the Institution is a party or by
which the Institution or any of its property may be bound; so as to
materially affect the Institution's ability to perform its
obligations under this Agreement.
b. The Institution has full corporate power and authority and has
received all corporate and governmental authorizations and approvals
as may be required to enter into and perform its obligations under
this Agreement and to borrow each Advance.
c. The information given by the Institution in any document provided, or
in any oral statement made, in connection with an application or
request for an Advance or a Commitment, a pledge, specification or
delivery of Collateral, is true, accurate and complete in all
material respects.
5.2 FIRREA COVENANT. If the Institution is an insured depository institution,
it further represents and warrants to, and covenants and agrees with, the
Bank that the necessary action to authorize the delivery of this Agreement
and the performance of its obligations hereunder includes all
authorizations required for insured depository institutions under the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the Institution will at all times during the term of this Agreement
continuously include and maintain this Agreement, including all exhibits,
attachments, supplements, Confirmations incorporated herein and evidence
of all necessary approvals, as part of its official written books and
records. In addition to any other remedies which the Bank may have under
this Agreement or otherwise, if the Institution breaches or defaults on
any of its obligations set forth in this paragraph, the Bank shall be
entitled to apply to any court of competent jurisdiction for an order
requiring specific performance by the Institution of such obligations, and
the Institution shall not contest any such application and shall comply
with any such order.
5.3 GOOD FAITH; LIABILITY OF BANK. The Institution and the Bank shall have an
obligation of good faith in the performance and enforcement of every duty
or right imposed or granted by this Agreement, and any other actions or
inactions taken or not taken with respect to this Agreement. "Good Faith"
shall mean honesty in fact (i.e., a subjective standard rather than an
objective standard). The Bank shall not be liable for any costs, expenses,
damages, liabilities or claims (including attorneys' and accountants'
fees) incurred by the Institution, except those costs, expenses, damages,
liabilities or claims arising out of the gross negligence or willful
misconduct of the Bank or any of its employees or duly appointed agents.
In no event shall the Bank be liable to the Institution or any third party
for special, indirect or consequential damages, or lost profits or loss of
business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of
the form of action.
5.4 ASSIGNMENT OF INDEBTEDNESS. The Institution hereby gives the Bank the
full right, power and authority to pledge or assign to any party all or
part of the Indebtedness, together with a proportionate amount of the
Collateral, as security for Consolidated Federal Home Loan Bank
Obligations, issued pursuant to the provisions of the Act or for any other
purpose authorized by the Act, the Regulations or the Federal Housing
Finance Board. In the case of any such pledge or assignment, the Bank
shall have no further responsibility with respect to Collateral transferred
to the pledgee or assignee, and all references herein to "the Bank" shall
be read to refer instead to the pledgee or assignee with respect to such
Collateral. The Institution may not voluntarily or involuntarily or by
operation of law or otherwise assign or transfer any of its rights or
obligations hereunder or with respect to any Advances or Commitments
without the express prior written consent of the Bank.
5.5 DISCRETION TO DENY ADVANCES. Nothing contained herein or in any documents
describing or setting forth the Bank's Credit Policy or other policies
shall be construed as an agreement or commitment on the part of the Bank
to grant Advances hereunder, or to enter into any other transaction, the
right and power of the Bank in its discretion to either
Page 7 of 9
8
grant (with or without conditions) or deny any Advance or other
transaction requested hereunder being expressly reserved.
5.6 ACCESS TO BANK RECORDS. The Bank shall grant to all governmental
regulatory agencies having jurisdiction over the Institution, to the
Institution's independent public accountants (to be named by written
notice delivered to the Bank) and to the Institution's internal auditors
the right at any reasonable time to examine and audit the Institution's
records in the Bank's possession, the right to request directly from the
Bank any reports, summaries or information of the Bank relating to the
Institution and the right to observe the processing of reports or examine
the Institution's documents at the Bank; provided, however, the Bank's
obligations hereunder shall not apply to the extent that the records,
reports, summaries, information or documents sought or requested are
contained in or derived from data not provided by the Bank in the
Institution or the Institution to the Bank pursuant to this Agreement.
5.7 AMENDMENT; WAIVERS. No modification, amendment or waiver of any provision
of this 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 Institution in any case shall
entitle the Institution to any other or further notice or demand in the
same, or similar or other circumstance. 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.
5.8 JURISDICTION; LEGAL FEES. In any action or proceeding brought by the Bank
or the Institution in order to enforce any right or remedy under this
Agreement, the parties hereby consent to, and agree that they will submit
to, the jurisdiction of the United States District Court for the District
of Kansas, or if such action or proceeding may not be brought in federal
court, the jurisdiction of the District Court of the County of Shawnee,
State of Kansas, to the exclusion of all other courts. The Institution
agrees that if any action or proceeding is brought by the Institution
seeking to obtain any legal or equitable relief against the Bank under or
arising out of this 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 Institution will pay all
attorneys' fees and other costs incurred by the Bank in connection
therewith. The Institution agrees to reimburse the Bank for all costs and
expenses (including reasonable fees and out-of-pocket expenses of counsel
for the Bank) incurred by the Bank in connection with the enforcement or
preservation of the Bank's rights under this Agreement including, but not
limited to, its rights in respect of any Collateral and the audit or
possession thereof.
5.9 APPLICABLE LAW; SEVERABILITY. This Agreement and all Advances granted
under this Agreement 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 choice of law provisions) of the State
of Kansas. In the event that any portion of this Agreement conflicts with
applicable law, such conflict shall not affect other provisions of this
Agreement that can be given effect without the conflicting provision, and
to this end the provisions of the Agreement are declared to be severable.
5.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the successors and permitted assignees of the Institution
and the Bank.
5.11 NOTICES. Any notice, advice, request, consent or direction given, made or
withdrawn pursuant to this Agreement shall be in writing or by
machine-readable electronic transmission, and shall be deemed to have been
duly given to and received by a party hereto three (3) Business Days after
it shall have been mailed to such party at its address herein provided,
if delivered by first-class mail, or if delivered by hand or by
machine-readable electronic transmission, when actually received by such
party at its principal office.
5.12 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof and supersedes all prior agreements between such parties, and all
oral and written statements by either party, that relate to such subject
matter. Notwithstanding the above, Advances made by the Bank to the
Institution prior to the execution of this Agreement shall continue to be
governed by the terms of the Confirmation pursuant to which such Advances
were made, and otherwise by the terms and conditions of this Agreement.
5.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which shall constitute but one Agreement.
Page 8 of 9
9
IN WITNESS WHEREOF, the Bank and the Institution have caused this Agreement to
be signed in their names by their duly authorized officers.
INSTITUTION FEDERAL HOME LOAN BANK OF TOPEKA
2 Township Plaza, P.O. Box 176
Topeka, KS 66601-0176
By: /s/ Michael H. Miller By: /s/ Steven D. Reichle
---------------------------- ------------------------------
Authorized Signature Authorized Signature
Michael H. Miller, Exec. V.P. & General Counsel Steven D. Reichle, SVP
- -------------------------------- ------------------------------
Typed Name and Title Typed Name and Title
Date: April 12, 2000 Date: April 17, 2000
------------------ ------------------
State of: Kansas )
----------------
) ss:
County of: Shawnee )
----------------
On this 12th day of April, 2000, before me came Michael H. Miller (name)
personally known to me, who being by me duly sworn, did depose and state that
he/she is the Exec. V.P. and General Counsel (title) of the Institution
described in and which executed the above instrument; that he/she signed
his/her name thereto by order of the board of directors or other governing body
of said Institution and that he/she acknowledged the execution of said
instrument to be the voluntary act and deed of said Institution.
(Notary Seal) /s/ Cara P. Christianson
--------------------------------------
Notary Public Signature
Cara P. Christianson
Notary Public My appointment expires: April 24, 2002
State of Kansas
My Appt. Expires 4/24/2002
Page 5 of 8