EXHIBIT 10(P)
FIRST FINANCIAL CORPORATION
PROMISSORY NOTE
FIRST FINANCIAL CORPORATION
PROMISSORY NOTE
$18,000,000.00 Milwaukee, Wisconsin
April 30, 1993
SECTION 1. FOR VALUE RECEIVED, FIRST FINANCIAL
CORPORATION, a Wisconsin corporation (the "Company"), hereby
promises to pay to the order of M&I MARSHALL & ILSLEY BANK, a
Wisconsin banking corporation ("M&I"), the principal sum of
EIGHTEEN MILLION AND 00/100 DOLLARS ($18,000,000.00) or such
lesser amount of loans which remain outstanding under this Note
on April 30, 1994. The unpaid principal shall bear interest from
the date hereof until paid, computed on the basis of a 360 day
year, at an annual rate equal to the prime rate of interest (the
"Prime Rate") adopted by M&I from time to time as the base rate
for interest rate determinations, changing on each day that the
Prime Rate changes. Interest shall be payable monthly in arrears
on the first day of each month in each year, commencing on
June 1, 1993 and continuing thereafter until the principal is
paid in full, with a final payment of interest due at maturity.
The Company agrees to pay interest on any overdue amounts at the
Prime Rate plus 2%. Each loan shall be in an integral multiple
of One Hundred Thousand and 00/100 Dollars ($100,000.00) and
shall be made on telephonic notice from an authorized officer of
the Company to M&I. The Company may reborrow any amounts paid or
prepaid on this Note, provided, however, that the aggregate
amount of loans outstanding hereunder shall never exceed
$18,000,000.00. All interest under this Note shall be computed
for the actual number of days elapsed on the basis of a 360 day
year.
Payments of both principal and interest are to be made in
lawful money of the United States of America at the offices of
M&I Marshall & Ilsley Bank, Attention: Loan and Discount
Department, 770 North Water Street, Milwaukee, Wisconsin, 53201,
or at such other place as the holder shall designate in writing
to the maker.
SECTION 2. PREPAYMENT. The Company may, at any time and
from time to time, prepay the loan in whole or in part without
premium or penalty. At the time of making any prepayment, the
Company shall pay all accrued interest upon the amount prepaid.
SECTION 3. The Company hereby waives presentment for
payment, protest and demand, notice of protest, demand and or
dishonor and nonpayment of this Note.
SECTION 4. DEFINITIONS. When used in this Note, the
following terms shall have the meanings specified:
Automatic Event of Default. "Automatic Event of Default"
shall mean any one or more of the following:
(a) the Company or FFB, shall: (i) become insolvent or
take or fail to take any action which constitutes an admission of
inability to pay its debts as they mature, (ii) make a general
assignment for the benefit of creditors or to an agent authorized
to liquidate any substantial amount of its assets, (iii) become
the subject of an "order for relief" within the meaning of the
United States Bankruptcy Code, (iv) file a petition in
bankruptcy, or for reorganization, or to effect a plan or other
arrangement with creditors, (v) file an answer to a creditor's
petition, admitting the material allegations thereof, for an
adjudication of bankruptcy or for reorganization or to effect a
plan or other arrangement with creditors, (vi) apply to a court
for the appointment of a receiver or custodian for any of its
assets or properties, or (vii) have a receiver or custodian
appointed for any of its assets or properties, with or without
consent, and such receiver shall be discharged within sixty (60)
days after his appointment; or
(b) the Company or FFB adopts a plan of complete
liquidation of its assets.
Consolidated Assets. "Consolidated Assets" shall mean
all consolidated assets of the Company and all Subsidiaries but shall
not include goodwill, patents, trademarks, trade names, copyrights
and other assets properly classified as intangible assets.
Event of Default. "Event of Default" shall mean any
automatic Event of Default and any Notice Event of Default.
FFB. "FFB" means First Financial Bank, FSB.
Indebtedness. "Indebtedness" shall mean, as to any
Person, all liabilities or obligations of that Person, whether
primary or secondary or absolute or contingent: (a) for borrowed
money, whether secured or unsecured; (b) evidenced by notes,
bonds, debentures, guarantees, endorsements or similar
obligations; (c) for capital lease obligations; (d) secured by
any Liens or (e) for deferred indebtedness whether secured or
unsecured, incurred in connection with the acquisition or
carrying of property.
Lien. "Lien" shall mean, with respect to any asset:
(a) any mortgage, pledge, lien, charge, security interest or
encumbrance of any kind; and (b) the interest of a vendor or
lessor under any conditional sale agreement, financing lease or
other title retention agreement relating to such asset.
Notice Event of Default. "Notice Event of Default" shall
mean any one or more of the following and such failure remains
uncured for a period of thirty (30) days after notice of such
occurrence is given by M&I to the Company:
(a) the Company shall fail to pay when due any
installment of the principal of or interest upon this Note;
(b) there shall be a default in the performance or
observance of any of the covenants and agreements contained in
this Note;
(c) there shall be a default in the performance or
observance of any of the covenants and agreements contained in
the Pledge Agreement or contained in other instruments delivered
by the Company to M&I;
(d) any representation or warranty made by the Company
in this Note or in any document or financial statement delivered
to M&I pursuant to this Note shall prove to have been false in
any material respect as of the time when made or given;
(e) the amount of any final judgment entered against the
Company or any Subsidiary, when added to the amount of all other
final judgments against the Company and all Subsidiaries, exceeds
the aggregate amount of $1,000,000 and such final judgments shall
remain outstanding and unsatisfied, unbonded or unstayed after
thirty (30) days from the date of entry thereof; or
(f) the Company or FFB defaults on any Indebtedness in
excess of $500,000 other than the loan represented by the Note,
or the Company's or FFB's failure to perform or observe any term,
covenant or condition for other Indebtedness in excess of
$500,000 if the effect of such failure is to accelerate such
Indebtedness and require such Indebtedness to be prepaid prior to
maturity.
Person. "Person" shall mean and include an individual,
partnership, corporation, trust, incorporated organization and a
government or any department or agency thereof.
Pledge Agreement. "Pledge Agreement" shall mean the
Collateral Pledge Agreement between the Company and M&I dated
June 29, 1990, as amended by the First Amendment to Collateral
Pledge Agreement dated as of May 1, 1991 between the Company and
M&I, a Second Amendment to Collateral Pledge Agreement dated as
of April 30, 1992, a Third Amendment to Collateral Pledge
Agreement dated as of November 30, 1992, and a Fourth Amendment
to Collateral Pledge Agreement dated April 30, 1993, and as
further amended from time to time.
Subsidiary. "Subsidiary" shall mean any corporation at
least fifty percent (50%) of the outstanding stock of which (of
any class or classes, however designated, having ordinary voting
power for the election of at least a majority of the members of
the board of directors of such corporation, other than stock
having such power only by reason of the happening of a
contingency) shall at the time be owned by the Company directly
or through FFB; provided, however, that an affiliate of FFB shall
only be considered a Subsidiary if such entity is reflected in
the annual consolidated and consolidating financial statements of
the Company and all Subsidiaries described in Section 5.5(b)
hereof or in any footnotes to such financial statements.
SECTION 5. Covenants. From and after the date of this
Note and until the entire amount of principal and interest due
under the Note and the entire amounts of fees and payments due
under this Note and the Collateral Pledge Agreement are paid in
full:
5.1 Indebtedness. The Company will not, and will cause
each Subsidiary to not, at any time permit the sum of the
following described Indebtedness to exceed 12% of Consolidated
Assets:
(a) Indebtedness of the Company and all Subsidiaries to
the Federal Home Loan Bank System; plus
(b) the maximum amount of Indebtedness which the Company
and all Subsidiaries could incur under commitments made by M&I;
plus
(c) all other Indebtedness of the Company and all
Subsidiaries.
5.2 Asset/Liability Ratio. The Company, on a consolidated
basis, will not at any time allow earning assets that mature or
are repriced within one year to fall below 84% or rise above 116%
of liabilities that mature or are repriced within one year, such
assets and liabilities being classified according to regulatory
requirements as reported by the Subsidiaries to the Office of
Thrift Supervision.
5.3 Risk-Based Capital Ratio. The Company shall cause FFB
to maintain at all times Risk-Based Capital, as measured by the
Office of Thrift Supervision, of at least 8% of Risk Weighted
Assets, as measured by the Office of Thrift Supervision.
5.4 Liquidity. The Company and its Subsidiaries shall
maintain Cash and Interest-earning Deposits, as defined in
accordance with generally accepted accounting principles, of at
least 4.5% of Consolidated Assets.
5.5 Reporting Requirements. The Company shall furnish to
M&I such information respecting the business, assets and
financial condition of the Company and the Subsidiaries as M&I
may reasonably request and without request furnish to M&I:
(a) within 45 days after the end of each fiscal quarter
in each fiscal year, a consolidated and consolidating balance
sheet of the Company and all Subsidiaries as of the end of each
such fiscal quarter and of the comparable fiscal quarter in the
preceding fiscal year and consolidated and consolidating
statements of income, stockholders equity and cash flow of the
Company and all Subsidiaries for each such fiscal quarter and for
that part of the fiscal year ending with each fiscal quarter and
for the corresponding periods of the preceding fiscal year, all
in reasonable detail and certified as true and correct, subject
to audit and normal year-end adjustments, by the chief financial
officer of the Company; and
(b) as soon as available, and in any event within 120
days after the close of each fiscal year, a copy of the detailed
annual audit report for such year and accompanying consolidated
and consolidating financial statements of the Company and all
Subsidiaries prepared in reasonable detail and in accordance with
generally accepted accounting principles consistently applied by
public accountants of recognized standing selected by the
Company, and reasonably satisfactory to M&I, which audit report
shall be accompanied by: (i) an opinion of such accountants, in
form and substance reasonably satisfactory to M&I to the effect
that the same fairly presents the consolidated financial
condition and the consolidated results of operations of the
Company and all Subsidiaries for the periods and as of the
relevant dates thereof, and (ii) a certificate of such
accountants setting forth their computations as to the Company's
compliance with Sections 5.1, 5.2, 5.3 and 5.4 of this Note and
stating that in the ordinary course of their audit, conducted in
accordance with generally accepted auditing practices, they did
not become aware of any Event of Default or, if their audit
disclosed an Event of Default, a specification of the Event of
Default and the actions taken or proposed to be taken by the
Company with respect thereto; and
(c) promptly after the same are available, copies of all
such proxy statements, reports and financial statements as the
Company shall send to its stockholders; and
(d) together with each delivery required by Sections
5.5(a) and (b) of this Note, a certificate of the Company in form
reasonably satisfactory to M&I as to the Company's compliance
with the covenants contained in this Note; and
(e) Promptly after the same are available, copies of all
reports submitted to the Company or any Subsidiary by independent
certified public accountants in connection with any annual or
special audit made of the books and records of the Company or any
Subsidiary or relating to the management, operation, accounting
procedures or internal controls of the Company or any Subsidiary.
5.6 Inspection of Properties and Records. The Company
shall, and shall cause each Subsidiary to, permit representatives
of M&I to visit any of its properties and examine any of its
books and records at any reasonable time and as often as may be
reasonably desired and facilitate such inspection and
examination.
SECTION 6. REMEDIES.
6.1 Acceleration. (a) Upon the occurrence of an Automatic
Event of Default, then, without notice, demand or action of any
kind by M&I, the entire amount of unpaid principal and accrued
and unpaid interest under this Note and the entire amount of
unpaid fees and expenses under this Note shall be automatically
and immediately due and payable.
(b) Upon the occurrence of a Notice Event of Default,
M&I may, by written notice to the Company, declare that the
entire amount of unpaid principal and accrued and unpaid interest
under this Note and the entire amount of unpaid fees and expenses
under this Note are immediately due and payable.
(c) No remedy herein conferred upon M&I is intended to
be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other
remedy given under this Note or the Pledge Agreement or now or
hereafter existing by law. No failure or delay on the part of
M&I in exercising any right or remedy shall operate as a waiver
thereof nor shall any single or partial exercise of any right
preclude other or further exercise thereof or the exercise of any
other right or remedy.
6.2 Fees, Expenses and Attorney's Fees. The Company shall
pay all reasonable fees and expenses incurred by M&I, including
the reasonable fees of counsel, in connection with the
maintenance, reissuance and amendment of this Note, the Pledge
Agreement and the consummation of the transactions contemplated
by this Note and the administration, protection or enforcement of
M&I's rights under this Note and the Pledge Agreement.
FIRST FINANCIAL CORPORATION
(CORPORATE SEAL)
By /s/ John C. Seramur
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John C. Seramur, President
Attest:
/s/ Robert M. Salinger
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Robert M. Salinger, Secretary