Exhibit 10
AMENDED AND RESTATED SECURED CREDIT AGREEMENT
($100,000,000 Term Loan Facility, $15,000,000 Revolving Loan Facility
and $7,500,000 Letter of Credit Facility)
dated as of August 11, 2005
among
FIRST BANKS, INC.
and
THE LENDERS SIGNATORY HERETO
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Agent
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Sole Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS................................................................1
Section 1.1 Defined Terms.......................................................................1
Section 1.2 Other Interpretive Provisions......................................................10
ARTICLE II. COMMITMENTS OF THE LENDERS; BORROWING,
CONVERSION AND LETTER OF CREDIT PROCEDURES........................................................10
Section 2.1 Commitments........................................................................10
2.1.1. Revolving Credit Commitment........................................................10
2.1.2. Term Loan Commitment...............................................................11
2.1.3. Letter of Credit Commitment........................................................11
Section 2.2 Revolving Loan Procedures..........................................................11
2.2.1 Borrowing Procedures...............................................................11
2.2.2 Conversion of Principal to Eurodollar Rates........................................13
Section 2.3 Letters of Credit Procedures.......................................................15
2.3.1 Issuance/Lender Participation......................................................15
2.3.2 Payment of Amounts Drawn Under Letters of Credit...................................15
2.3.3 Special Account....................................................................16
2.3.4 Authorization for Borrowing........................................................17
Section 2.4 Second Term Loan Procedures........................................................17
Section 2.5 Use of Proceeds....................................................................18
ARTICLE III. EVIDENCING OF LOANS..........................................................................18
Section 3.1 Notes..............................................................................18
Section 3.2 Payment of Term Note...............................................................18
Section 3.3 Recordkeeping......................................................................18
ARTICLE IV. INTEREST......................................................................................19
Section 4.1 Interest Rates.....................................................................19
Section 4.2 Default Interest Rate..............................................................19
Section 4.3 Interest Payments..................................................................19
Section 4.4 Making of Payments.................................................................20
Section 4.5 Payment on Nonbusiness Days........................................................20
Section 4.6 Computation of Interest and Fees...................................................20
Section 4.7 Generally..........................................................................20
ARTICLE V. FEES, REDUCTIONS AND PREPAYMENTS...............................................................21
Section 5.1 Term and Revolving Loan Commitment Fee.............................................21
Section 5.2 Letter of Credit Fees..............................................................21
Section 5.3 Termination or Reduction of the Revolving Credit
Commitments.......................................................................22
Section 5.4 Termination or Reduction of Letter of Credit Commitment............................22
Section 5.5 Voluntary Prepayments..............................................................22
Section 5.6 Fees on Advances and Indemnity.....................................................22
Section 5.7 Capital Adequacy...................................................................24
Section 5.8 Failure of Any Lender to Make Advances.............................................25
ARTICLE VI. CONDITIONS PRECEDENT..........................................................................25
Section 6.1 Initial Conditions Precedent.......................................................25
Section 6.2 Conditions Precedent to All Advances...............................................27
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...............................................................27
Section 7.1 Corporate Existence and Power......................................................27
Section 7.2 Authorization of Borrowing; No Conflict as to Law or
Agreements........................................................................28
Section 7.3 Legal Agreements...................................................................28
Section 7.4 Subsidiaries.......................................................................28
Section 7.5 Financial Condition................................................................28
Section 7.6 Adverse Change.....................................................................29
Section 7.7 Litigation.........................................................................29
Section 7.8 Regulation U.......................................................................29
Section 7.9 Taxes..............................................................................29
Section 7.10 Titles.............................................................................29
Section 7.11 ERISA..............................................................................29
Section 7.12 Regulatory Matters.................................................................29
ARTICLE VIII. AFFIRMATIVE COVENANTS.......................................................................30
Section 8.1 Reporting Requirements.............................................................30
Section 8.2 Books and Records; Inspection and Examination......................................31
Section 8.3 Compliance with Laws...............................................................32
Section 8.4 Payment of Taxes and Other Claims..................................................32
Section 8.5 Operations.........................................................................32
Section 8.6 Insurance..........................................................................32
Section 8.7 Preservation of Corporate Existence................................................32
Section 8.8 Additional Collateral..............................................................32
Section 8.9 Notice of Acquisition..............................................................33
ARTICLE IX NEGATIVE COVENANTS.............................................................................33
Section 9.1 Liens..............................................................................33
Section 9.2 Indebtedness.......................................................................33
Section 9.3 Guaranties.........................................................................34
Section 9.4 Shareholder Redemptions............................................................34
Section 9.5 Acquisitions.......................................................................34
Section 9.6 Subordinated Debt..................................................................34
Section 9.7 Restrictions on Nature of Business.................................................34
Section 9.8 Negative Pledges; Subsidiary Restrictions..........................................35
Section 9.9 Issuance of Additional Stock.......................................................35
Section 9.10 Regulatory Matters.................................................................35
Section 9.11 Dividends..........................................................................35
ARTICLE X. FINANCIAL COVENANTS............................................................................36
Section 10.1 Total Risk Based Capital Ratio.....................................................36
Section 10.2 Tier I Risk Based Capital Ratio....................................................36
Section 10.3 Leverage Ratio.....................................................................36
Section 10.4 Minimum Return on Assets...........................................................36
Section 10.5 Maximum Non-Performing Assets......................................................36
Section 10.6 Allowance for Loan and Lease Losses................................................36
ARTICLE XI. EVENTS OF DEFAULT, RIGHTS AND REMEDIES........................................................36
Section 11.1 Events of Default..................................................................36
Section 11.2 Rights and Remedies................................................................39
Section 11.3 Offset.............................................................................40
ARTICLE XII THE AGENT.....................................................................................40
Section 12.1 Authorization......................................................................40
Section 12.2 Distribution of Payments and Proceeds..............................................40
Section 12.3 Expenses...........................................................................41
Section 12.4 Payments Received Directly by Lenders..............................................41
Section 12.5 Indemnification....................................................................42
Section 12.6 Limitations on Agent's Power.......................................................42
Section 12.7 Exculpation........................................................................42
Section 12.8 Agent and Affiliates...............................................................42
Section 12.9 Credit Investigation...............................................................43
Section 12.10 Resignation........................................................................43
Section 12.11 Assignments........................................................................43
Section 12.12 Participations.....................................................................44
Section 12.13 Disclosure of Information..........................................................45
ARTICLE XIII. MISCELLANEOUS...............................................................................45
Section 13.1 No Waiver, Cumulative Remedies.....................................................45
Section 13.2 Amendments, Etc....................................................................45
Section 13.3 Notice.............................................................................46
Section 13.4 Costs and Expenses.................................................................46
Section 13.5 Indemnification by Borrower........................................................46
Section 13.6 Execution in Counterparts..........................................................47
Section 13.7 Binding Effect, Assignment.........................................................47
Section 13.8 Governing Law......................................................................47
Section 13.9 Consent to Jurisdiction/Jury Wavier................................................47
Section 13.10 Severability of Provisions.........................................................48
Section 13.11 Prior Agreements...................................................................48
Section 13.12 Headings...........................................................................48
Section 13.13 No Oral Agreements.................................................................48
Exhibit A -- Borrower Pledge Agreement
Exhibit B -- Term and Revolving Loan Commitment Amounts
Exhibit C -- Compliance Certificate
Exhibit D1 -- Application for Standby Letter of Credit
Exhibit D2 -- Standby Letter of Credit Agreement
Exhibit E -- Revolving Note
Exhibit F -- San Francisco Company Guaranty
Exhibit G -- San Francisco Company Security Agreement
Exhibit H -- Term Loan Note
Exhibit I -- Notice of Borrowing
Exhibit J -- Notice of Conversion/Continuation
Exhibit K -- Permissible Securities
Exhibit L -- Notice of Permitted Acquisition
Schedule 7.4 -- Subsidiaries
Schedule 7.7 -- Litigation
Schedule 9.1 -- Existing Liens
Schedule 9.2 -- Indebtedness
Schedule 9.3 -- Guaranties
AMENDED AND RESTATED SECURED CREDIT AGREEMENT
THIS AMENDED AND RESTATED SECURED CREDIT AGREEMENT (this "Agreement")
dated as of August 11, 2005, is entered into by and among FIRST BANKS, INC., a
Missouri corporation ("Borrower"), the financial institutions that have executed
this Agreement as lenders (each individually a "Lender" and collectively the
"Lenders"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, as Agent.
WITNESSETH THAT:
WHEREAS, pursuant to that certain Secured Credit Agreement dated as of
August 14, 2003, as amended by First Amendment to Secured Credit Agreement dated
as of August 12, 2004 (collectively the "Existing Credit Agreement"), each made
by and between Borrower, Lenders and Agent, Lenders severally agreed to make
available to Borrower a revolving credit facility in the amount of Seventy-Five
Million Dollars ($75,000,000) and a revolving letter of credit facility in the
amount of Twenty-Five Million Dollars ($25,000,000) upon the terms and
conditions set forth in the Existing Credit Agreement;
WHEREAS, Borrower has requested that Lenders severally make available a
new term loan credit facility in the amount of One Hundred Million Dollars
($100,000,000), a new revolving credit facility in the amount of Fifteen Million
Dollars ($15,000,000) and a new revolving letter of credit facility in the
amount of Seven Million Five Hundred Thousand Dollars ($7,500,000) (collectively
the "Requested Facilities");
WHEREAS, Borrower, Lenders and Agent desire to enter into this Amended
and Restated Secured Credit Agreement in replacement of the Existing Credit
Agreement, in its entirety, thereby making available to Borrower the Requested
Facilities; and
WHEREAS, the Lenders are willing severally to provide the Requested
Facilities to Borrower, subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms. As used in this Agreement, the following
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terms have the following meanings (terms defined in the singular to have the
same meaning when used in the plural and vice versa):
"Acquisition" shall mean any of (i) the acquisition by Borrower
or any of its Subsidiaries of stock or other equity interest in any
Person, (ii) the acquisition by any Person of stock or other equity
interest in Borrower or any of its Subsidiaries, (iii) the
consolidation or merger of any Person into Borrower or any of its
Subsidiaries, (iv) the consolidation or merger of Borrower or any of
its Subsidiaries into any Person, and (v) the transfer, outside of the
ordinary course of business, of any assets of any other Person to
Borrower or any of its Subsidiaries, or of Borrower or any of its
Subsidiaries to any other Person.
"Additional Lender" means a financial institution that becomes a
Lender pursuant to the procedures set forth in Section 12.11(a).
"Advance" means any advance by the Lenders to the Borrower
pursuant to Article II.
"Affiliate" means any Person (1) which directly or indirectly
Controls, or is Controlled by, or is under common Control with, the
Borrower or any Subsidiary; (2) which directly or indirectly
beneficially owns or holds five percent (5%) or more of any class of
voting stock of Borrower or any Subsidiary; or (3) five percent (5%)
or more of the voting stock of which is directly or indirectly
beneficially owned or held by Borrower or any Subsidiary.
"Agent" means Wells Fargo Bank, National Association, acting in
its capacity as Agent pursuant to Article XII hereof, or any duly
appointed successor.
"Agreement" has the meaning assigned to that term in the preamble
of this Agreement.
"Bank Business Day" means a day other than a Saturday, Sunday,
United States national holiday or other day on which banks in
Minnesota are permitted or required by law to close.
"Bank Subsidiary" means any direct or indirect Subsidiary of the
Borrower which is a bank or thrift institution, including, without
limitation the financial institutions listed in Schedule 7.4 hereof
and, beginning one year following the acquisition thereof, any bank or
thrift institution subsequently becoming a direct or indirect
Subsidiary of the Borrower.
"Base Rate" means the rate of interest publicly announced from
time to time by the Agent as its "prime" or "base" rate or, if the
Agent ceases to announce a rate so designated, any similar successor
rate designated by the Agent. Each change in the Base Rate shall be
effective on the day the change in the "prime" or "base" rate is
announced within Agent.
"Borrower" has the meaning assigned to such term in the preamble
of this Agreement.
"Borrower Pledge Agreement" means the collateral pledge agreement
in the form of Exhibit A pledging to the Agent for the ratable benefit
of the Lenders all of the stock of San Francisco Company.
"Borrowing" means any borrowing under Article II made to the
Borrower by each of the Lenders severally.
"Capitalized Lease" of a Person means any lease of property by
such Person as lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with GAAP.
"Closing Date" means the date upon which the last of the
conditions precedent specified in Article VI shall be satisfied.
"Collateral" means the Borrower's Special Account and all
property which is subject or is to be subject to the Liens granted by
the Borrower Pledge Agreement and the San Francisco Company Security
Agreement.
"Commitments" means the several (i) Term Loan Commitments of the
Lenders in the aggregate original principal amount of One Hundred
Million Dollars ($100,000,000); and (ii) Revolving Credit Commitments
of Lenders in the aggregate principal amount of Fifteen Million
Dollars ($15,000,000), as such amount may be reduced from time to time
pursuant to Section 5.3. When used with reference to a particular
Lender, "Commitment" means that Lender's obligation to make Advances
in aggregate amounts equal to its Term and Revolving Credit Commitment
Amounts.
"Compliance Certificate" means a certificate in substantially the
form of Exhibit C, or such other form as the Borrower and the Required
Lenders may from time to time agree upon in writing, executed by the
Chief Financial Officer of the Borrower and one (1) additional officer
of the Borrower identified on the signature page to said Exhibit C,
stating (i) that any financial statements delivered therewith have
been prepared in accordance with GAAP, subject to year-end audit
adjustments, (ii) whether or not such officer has knowledge of the
occurrence of any Default or Event of Default and stating in
reasonable details the facts with respect to such Default or Event of
Default, (iii) all relevant facts in reasonable detail to evidence,
and the computations as to, whether or not the Borrower is in
compliance with the Financial Covenants, and (iv) all relevant facts
in reasonable detail to evidence, and the computations as to, whether
or not the Borrower is in compliance with the other covenants.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by
contract, or otherwise. For the purposes of the foregoing definition,
a shareholder of Borrower shall not be deemed to be directly or
indirectly Controlling or Controlled by the Borrower or a Subsidiary,
provided the person in question will not receive any proceeds from the
Loans.
"Default" means any of the events specified in Section 11.1,
whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Equity Capital" means, as to Borrower or any Bank Subsidiary,
the aggregate of its perpetual preferred stock (and related surplus),
common stock, surplus (excluding all surplus related to perpetual
preferred stock), undivided profits and capital reserves, plus its net
unrealized holding gains (or minus its net realized holding losses) on
available-for-sale securities.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and published
interpretations thereof.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which together with the Borrower would be treated as a
single employer under Section 4001 of ERISA.
"Eurodollar Business Day" means a Bank Business Day on which
dealings in U.S. dollar deposits are carried on in the London
interbank market.
"Eurodollar Rate" means the annual rate equal to the sum of (i)
the rate obtained by dividing (a) the rate (rounded up to the nearest
1/16 of 1%) determined by the Agent as of 11:00 a.m. London, England
time on the second Eurodollar Business Day prior to the date such rate
is to become effective to be the average rate at which U.S. dollar
deposits are offered or available to banks in the London interbank
market for funds to be made available on the first day of any Interest
Period in an amount approximately equal to the amount for which a
Eurodollar Rate quotation has been requested and maturing at the end
of such Interest Period, by (b) a percentage equal to 100% minus the
Federal Reserve System reserve requirement (expressed as a percentage)
applicable to such deposits, and (ii) the applicable Margin. In making
such determination, the Agent shall utilize Telerate page 3750 under
the heading "British Bankers Association LIBOR rates" in the column
designated "USD," as published by Bridge Information Systems, Inc., or
such other comparable source as may be available to the Agent in the
event such Telerate page is no longer published or readily available.
"Eurodollar Rate Funding" means a Borrowing or any portion
thereof, or any other portion of the principal balance of any of the
Notes, that bears interest at a Eurodollar Rate.
"Event of Default" means any of the events specified in Section
11.1, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other applicable condition, has been
satisfied.
"Existing Credit Agreement" has the meaning assigned to such term
in the recitals to this Agreement.
"Federal Funds Rate" means at any time an interest rate per annum
equal to the weighted average of the rates for overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any
day which is a Bank Business Day, the average, determined by the
Agent, of the quotations for such day for such transactions received
by the Agent from three federal funds brokers of recognized standing
selected by it, it being understood that the Federal Funds Rate for
any day which is not a Bank Business Day shall be the Federal Funds
Rate for the next preceding Bank Business Day.
"Financial Covenants" means any covenant contained in Article X.
"First Bank" means First Bank, a Missouri state bank.
"Floating Rate" means, at any time, an annual rate equal to the
greater of:
(i) the Base Rate; or
(ii) the Federal Funds Rate, plus fifty (50) basis points
(0.50%).
The Floating Rate shall change when and as the Base Rate or Federal
Funds Rate changes.
"Funded Debt" of the Borrower means (without duplication)(i) all
indebtedness of the Borrower for borrowed money; (ii) indebtedness
evidenced by bonds, notes or similar written debt instruments; and
(iii) the face amount of all letters of credit and bankers'
acceptances issued for the account of the Borrower, and, without
duplication, all drafts drawn thereunder; provided, however, that in
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no event shall any calculation of Funded Debt include Subordinated
Debt or debt of the type referred to in Section 9.2(b) or
Section 9.2(c).
"Funded Debt Ratio" means the ratio of Funded Debt to Net Income
of the Borrower for the most recent period of four (4) fiscal
quarters.
"GAAP" means U.S. generally accepted accounting principles
applied on a basis consistent with the accounting practices applied in
the financial statements described in Section 7.5.
"Interest Period" means, with respect to any Eurodollar Rate
Funding (except as provided at Section 4.7 on the Closing Date of this
Agreement), a period of one, two, three or six months beginning on a
Eurodollar Business Day, as elected by the Borrower. Each Interest
Period shall end on the day in the final month of such Interest Period
that immediately precedes the date which numerically corresponds to
the first day of such Interest Period, except that (i) if such final
month has no numerically corresponding day, then the Interest Period
shall end on the last Eurodollar Business Day of such month, and (ii)
if an Interest Period would otherwise end on a day which is not a
Eurodollar Business Day, such Interest Period shall end on the next
following Eurodollar Business Day, unless such next following
Eurodollar Business Day is the first Eurodollar Business Day of a
month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day.
"L/C Application" means an Application for Standby Letter of
Credit in the form of Exhibit D1, and the master Standby Letter of
Credit Agreement in the form of Exhibit D2, which master Standby
Letter of Credit Agreement is incorporated into each such Application
for Standby Letter of Credit by reference.
"L/C Margin" means an amount determined under Section 4.7 that is
charged pursuant to Section 5.2.
"Lender" or "Lenders" has the meaning assigned to such term in
the preamble to this Agreement.
"Letter of Credit" has the meaning provided in Section 2.1.3.
"Letter of Credit Commitment" means Agent's commitment to issue
Letters of Credit as provided in Section 2.3.
"Letter of Credit Commitment Amount" means the sum of $7,500,000,
as that amount may from time to time be adjusted pursuant to Section
5.4.
"Letter of Credit Termination Date" means August 10, 2006.
"Leverage Ratio" shall be defined and calculated in accordance
with Federal Reserve Board Regulation Y in the case of the Borrower
and in accordance with Section 38 of the Federal Deposit Insurance Act
in the case of a Bank Subsidiary.
"Lien" means any mortgage, deed of trust, lien, pledge, security
interest or other charge or encumbrance, of any kind whatsoever,
including but not limited to the interest of the lessor or titleholder
under any Capitalized Lease, title retention contract or similar
agreement.
"Loan Documents" means this Agreement, the Notes, the Borrower
Pledge Agreement, the San Francisco Company Guarantee and the San
Francisco Company Security Agreement, as each may be renewed,
extended, amended, rearranged, restructured, restated, replaced or
otherwise modified from time to time.
"Margin" means amounts determined pursuant to Section 4.7 that is
added to other amounts to determine a Eurodollar Rate.
"Maturity Date" means August 10, 2008.
"Multiemployer Plan" means a Plan described in Section 4001(a)
(3) of ERISA which covers employees of the Borrower or any of its
Affiliates.
"Net Income" has the meaning assigned to such term by GAAP,
without reference to extraordinary items or adjustments caused solely
by changes in applicable accounting principles.
"Non-Performing Assets" of any Person means the sum of: (i) all
loans and leases classified as past due 90 days or more and still
accruing interest; (ii) all loans and leases classified as
"non-accrual" and no longer accruing interest; (iii) all loans and
leases classified as "restructured loans and leases"; (iv) without
duplication, all property acquired in repossession or foreclosure and
property acquired pursuant to in-substance foreclosure; and (v) if
such Person is a Bank Subsidiary, all other "Non-Performing Assets,"
as reported in the then most recent call report of such Bank
Subsidiary.
"Note" means either a Revolving Note or a Term Note.
"Notes" means, collectively, the Revolving Notes and the Term
Notes.
"Obligation of Reimbursement" has the meaning given in Section
2.3.2(a).
"Obligations" means all debts, liabilities, obligations,
covenants and duties of the Borrower arising under any of the Loan
Documents, whether direct or indirect, absolute or contingent, due or
to become due, and whether now existing or hereafter arising.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the percentage
so designated next to such Lender's name in Exhibit B, as such
percentage may be adjusted from time to time pursuant to Section
12.11.
"Permitted Acquisition" means any Acquisition by Borrower or any
of its Subsidiaries, in each case so long as:
(i) no Default or Event of Default is continuing at the
time of such Acquisition, or would be caused by such
Acquisition;
(ii) all authorizations of governmental agencies, bodies or
authorities which are necessary to approve the
Acquisition have been obtained and are in full force
and effect, or will be obtained contemporaneously with
the earlier to occur of closing of such Acquisition and
the making of any Advance for such purpose, and no
further approval, consent, order or authorization of or
designation, registration, declaration or filing with
any governmental authority is required in connection
therewith;
(iii) in the case of any Acquisition that is a consolidation
or merger, the continuing or surviving corporation
shall be controlled by the Borrower immediately
following the transaction; provided, however, that (A)
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a Subsidiary may merge with and into the Borrower or
another Subsidiary, but (B) under no circumstances may
the Borrower merge into or consolidate with any
Subsidiary; and
(iv) any notice required in connection with such Acquisition
pursuant to Section 8.9 shall have been timely given.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority, or other juridical entity of whatever
nature.
"Plan" means any employee benefit or other plan established,
maintained, or to which contributions have been made by the Borrower
or any ERISA Affiliate.
"Primary Equity Capital" of an entity means the aggregate of the
allowance for loan and lease losses of such entity, as reported in the
most recent quarterly report on Form 10-Q or annual report on Form
10-K filed by the Borrower with the SEC plus the Equity Capital of
such entity.
"Prohibited Transaction" means any transaction prohibited by
Section 406 of ERISA or Section 4975 of the Internal Revenue Code, as
amended from time to time.
"Reportable Event" means any of the events set forth in Section
4043 of ERISA.
"Required Lenders" means Lenders (including, where relevant,
Additional Lenders) having an aggregate Percentage of 66 2/3% or more
or, if the Commitments shall have been terminated, having 66 2/3% or
more of the aggregate principal amount of all then outstanding
Advances.
"Return on Assets" of a Person means the percentage determined by
dividing the Net Income of such Person for the four calendar quarters
immediately preceding the date of determination by its total average
assets during such period. The total average assets of a Person shall
be as reported in quarterly financial statements for such period or,
in the case of a Bank Subsidiary, in its four most recent quarterly
call reports.
"Revolving Credit Commitment" means Lenders' commitments to
provide revolving loans as provided in Section 2.1.1.
"Revolving Credit Commitment Amount" means, with respect to each
Lender, the Revolving Credit Commitment amount set forth opposite that
Lender's name on Exhibit B, as that amount may be adjusted from time
to time pursuant to Section 5.3 or any assignment made pursuant to
Section 12.11.
"Revolving Credit Termination Date" means August August 10, 2006.
"Revolving Loans" shall have the meaning provided in Section
2.1.1.
"Revolving Note" means a Note evidencing a Revolving Loan made by
a Lender, which Note is in the form of Exhibit E attached hereto.
"San Francisco Company" means The San Francisco Company, a
Delaware corporation.
"San Francisco Company Guaranty" means the Guaranty, in the form
of Exhibit F, whereby San Francisco Company guarantees to the Lenders
payment of the Obligations.
"San Francisco Company Security Agreement" means the San
Francisco Company Security Agreement, in the form of Exhibit G,
pledging to the Agent for the ratable benefit of the Lenders all of
the stock of First Bank.
"SEC" means the federal Securities and Exchange Commission.
"Second Term Loan Funding Date" means November 11, 2005.
"Subordinated Debt" means indebtedness of the Borrower or any of
its Subsidiaries which is subordinated in right of payment to all
indebtedness of the Borrower to any Lender, on terms that have been
approved in writing by the Required Lenders and that have been noted
by appropriate legend on all instruments evidencing the Subordinated
Debt.
"Subsidiary" means, as to Borrower, any business entity,
including, but not limited to any corporation, limited liability
company, partnership, limited partnership, limited liability
partnership, business trust, or any similar entity, with total assets
exceeding $1,000,000 of which shares of stock having ordinary voting
power (other than stock having such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned,
or the management of which corporation is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
the Borrower or a Subsidiary of Borrower.
"Term Loan" shall have the meaning provided in Section 2.1.2.
"Term Loan Commitment" means Lenders' commitment to provide term
loans as provided in Section 2.1.2.
"Term Loan Commitment Amount" means, with respect to each Lender,
the Term Loan Commitment amount set opposite that Lender's name on
Exhibit B, as that amount may be adjusted from time to time pursuant
to any assignment made pursuant to Section 12.11.
"Term Note" means a promissory note evidencing a Term Loan made
by a Lender and in the form of Exhibit H.
"Tier I Risk Based Capital Ratio" shall be defined and calculated
in accordance with Federal Reserve Board Regulation Y in the case of
the Borrower and in accordance with Section 38 of the Federal Deposit
Insurance Act in the case of a Bank Subsidiary.
"Total Revolving Loan Commitment Amount" means the sum of Fifteen
Million Dollars ($15,000,000) as that amount may be adjusted from time
to time pursuant to Section 5.3.
"Total Risk Based Capital Ratio" shall be defined and calculated
in accordance with Federal Reserve Board Regulation Y in the case of
the Borrower and in accordance with Section 38 of the Federal Deposit
Insurance Act in the case of a Bank Subsidiary.
"Total Term Loan Commitment Amount" means the sum of One Hundred
Million Dollars ($100,000,000).
Section 1.2 Other Interpretive Provisions.
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(a) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP consistent with those applied in the
preparation of the financial statements and reports referred to in Section 8.1,
and all financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
(b) Section references are to this Agreement unless otherwise
specified.
(c) Schedules and Exhibits referred to herein are attached to and
made a part hereof unless otherwise specified.
(d) The term "including" is not limiting and means "including
without limitation."
(e) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means "to
and including."
(f) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement and the other Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, supplements and other modifications thereto, but only to the
extent such amendments, restatements, supplements and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.
(g) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and each
shall be performed in accordance with its terms.
(h) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Borrower, Lenders
and Agent and the other parties thereto and are the products of all parties.
Accordingly, they shall not be construed against Borrower, Agent or Lenders
merely because of Borrower's, Agent's or Lender's involvement in their
preparation.
ARTICLE II.
COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION
AND LETTER OF CREDIT PROCEDURES
Section 2.1 Commitments. On and subject to the terms and
-----------
conditions of this Agreement, each of the Lenders, severally and for itself
alone, agrees to make loans to, and to issue or participate in letters of credit
for the account of, the Borrower as follows:
2.1.1. Revolving Credit Commitment. Subject to Section 2.2, each
---------------------------
Lender shall make a loan to Borrower, on a revolving basis
(collectively, the "Revolving Loans"), from time to time through the
Revolving Credit Termination Date, to the extent of such Lender's
Percentage of the aggregate amount requested by Borrower from all
Lenders in accordance with this Agreement; provided however that the
aggregate of all Revolving Loans outstanding shall at no time exceed
the Total Revolving Loan Commitment Amount.
2.1.2. Term Loan Commitment. Each Lender shall make a loan to
--------------------
Borrower on the Closing Date, equal to such Lender's Percentage of the
sum of Eighty Million Dollars ($80,000,000). Thereafter, each Lender
shall make a loan to Borrower on the Second Term Loan Funding Date,
equal to such Lender's Percentage of the sum of Twenty Million Dollars
($20,000,000), which each Lender shall remit to the Borrower in
accordance with Section 2.4 (the "Second Term Loan"). Each Lender's
loan to the Borrower on the Closing Date and the Second Term Loan
Funding Date shall comprise each Lender's "Term Loan" to the Borrower.
The Term Loans in the aggregate shall equal the Total Term Loan
Commitment Amount. The commitments of Lenders to make Term Loans
hereunder shall expire with making of the Term Loan on the Closing
Date and the Second Term Loan on the Second Term Loan Funding Date, as
applicable.
2.1.3. Letter of Credit Commitment. Subject to Section 2.3,
------------------------------
Agent shall, from time to time, issue one or more letters of credit
(each a "Letter of Credit"), for the account of Borrower, through the
Letter of Credit Termination Date, in an aggregate amount at any time
outstanding not to exceed the Letter of Credit Commitment Amount. Each
Letter of Credit shall be at the request and for the account of
Borrower pursuant to a separate L/C Application entered into by
Borrower, as applicant. The terms and conditions set forth in each L/C
Application shall supplement the terms and conditions hereof, but, in
the event of any inconsistency between the terms and conditions of any
such L/C Application, and the terms of the Agreement, the terms hereof
shall control. Each Lender shall be deemed to purchase and hold a
participation in each Letter of Credit equal to such Lender's
Percentage of the face amount of that Letter of Credit.
Notwithstanding anything to the contrary above provided, at no time
shall the aggregate face amount of all Letters of Credit outstanding
exceed the Letter of Credit Commitment Amount.
Section 2.2 Revolving Loan Procedures.
-------------------------
2.2.1 Borrowing Procedures.
--------------------
(a) Each Revolving Loan shall occur following written
request via such form as attached as Exhibit I or telephonic
request to the Agent from the Borrower, with any telephonic
request to be confirmed by fax in such form as attached as
Exhibit I. Each such notice or request shall specify: (i) the
date of the requested Revolving Loan; (ii) the amount thereof;
and (iii) if any portion of such Revolving Loan will bear
interest at a Eurodollar Rate, the Interest Period selected by
the Borrower with respect thereto. Such notice or request must be
received by the Agent not later than 10:00 a.m. (California time)
on the Bank Business Day prior to the day on which such Revolving
Loan is to occur or, if all or any portion of the Revolving Loan
will bear interest at a Eurodollar Rate, not later than three
Eurodollar Business Days prior to the date on which such
Revolving Loan is to occur. Each Borrowing shall be in the amount
of (i) not less than $1,000,000 or (ii) in an integral multiple
of $100,000 greater than $1,000,000. The Borrower shall be
obligated to repay all Revolving Loans made to it notwithstanding
the fact that the Person requesting the same was not in fact
authorized so to do. Any request for a Revolving Loan shall be
deemed to be a representation that the statements set forth in
Article VII are correct except to the extent that the same relate
specifically to an earlier date.
(b) Upon receiving a request for a Borrowing under this
Section 2.2.1, and in any event not later than 11:00 a.m.
(California time) on the day that the request is received, the
Agent will notify the Lenders of the amount of the requested
Borrowing, the amount of each Lender's Revolving Loan with
respect thereto, and, if applicable, the fact that the Borrower
has elected a Eurodollar Rate and the Interest Period selected by
the Borrower. Upon fulfillment of the applicable conditions set
forth in Article VI, each Lender shall remit its Percentage of
the requested Revolving Loan to the Agent in immediately
available funds. Each Lender shall make each Advance to be made
by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 11:00 a.m. (California time) to
the account of the Agent most recently designated by it for such
purpose by notice to the Lenders. The Agent will make such
Advances available to the Borrower by wire transferring the same
to an account designated by the Borrower at First Bank or in such
other manner as the Agent and the Borrower may from time to time
agree in writing, prior to 12:00 noon (California time) on the
day of the requested Revolving Loan. The Agent shall have no
obligation to disburse the requested Borrowing if any condition
set forth in Article VI has not been satisfied on the day of the
requested Revolving Loan. Unless the Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Agent such
Lender's Percentage of such Revolving Loan, the Agent may assume
that such Lender has made such share available on such date in
accordance with this Section 2.2.1 and may, in reliance upon such
assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its
Percentage of the applicable Revolving Loan available to the
Agent, then the applicable Lender agrees to pay to the Agent
forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of
payment to the Agent, at the greater of the Federal Funds Rate
and a rate determined by the Agent in accordance with banking
industry rules on interbank compensation. If such Lender pays
such amount to the Agent, then such amount shall constitute such
Lender's Percentage in such Revolving Loan.
(c) In the event that any one or more Lenders' obligations
to make Advances at the Eurodollar Rate are suspended pursuant to
Section 2.2.2(c) following a request for a Borrowing that
specifies that a Eurodollar Rate is to apply, such Lenders shall
nevertheless be obliged to fund their respective Advances, and
such Advances shall bear interest at the Floating Rate until they
are repaid or until such Lenders may again make, maintain or fund
Advances at the Eurodollar Rate and the Borrower requests
pursuant to Section 2.2.2(a) that a Eurodollar Rate be applicable
to such Advances.
2.2.2 Conversion of Principal to Eurodollar Rates.
-------------------------------------------
(a) At the election of the Borrower, which election may be
exercised from time to time, the Borrower may request in writing
via such form as attached as Exhibit J or by telephonic request
to be confirmed by fax in such form as attached as Exhibit J that
a Eurodollar Rate be applicable for the portion of the
outstanding principal balance of the Term or Revolving Notes
(including any Revolving Loan requested or to be requested) and
for the Interest Period indicated by the Borrower in its request.
The portion of the outstanding balance of the Notes for which a
Eurodollar Rate is requested must, on the first day of the
applicable Interest Period, either (A) bear interest at the
applicable Floating Rate, or (B) bear interest at an applicable
Eurodollar Rate with respect to which the Interest Period expires
on such first day. A request for a Eurodollar Rate must be
received by the Agent before 10:00 a.m. (California time) on the
day three (3) Eurodollar Business Days before the first day of
the proposed Interest Period. Upon receiving a request for a
Eurodollar Rate, and in any event not later than the close of
business on the day that the request is received, the Agent will
notify the Lenders of the Note (Term or Revolving) subject to
such Eurodollar Rate and the amount and Interest Period
applicable thereto. Not later than 2:00 p.m. (California time) on
the second (2nd) Eurodollar Business Day prior to the date on
which such Eurodollar Rate is to become effective, the Agent will
notify the Lenders and the Borrower of the interest rate to be
applicable thereto. Following a request for a Eurodollar Rate
under this Section 2.2.2, or pursuant to Section 2.2.1, the
Eurodollar Rate as determined hereunder shall be the interest
rate applicable for the proposed Interest Period to the portion
of the outstanding principal balance of the Notes to which the
quotation related, subject to fluctuations in the applicable
Margin (and the remaining part of the principal balance of those
Notes (and any other Notes), if any, shall continue to bear
interest at the rate or rates previously applicable to such
amounts). At the termination of such Interest Period, the
interest rate applicable to that portion of the principal balance
of those Notes to which the Eurodollar Rate quotation was
applicable shall revert to the Floating Rate unless a new
Eurodollar Rate quotation with respect thereto is requested by
the Borrower in accordance with this Section 2.2.2.
(b) The Eurodollar Rate applicable to each Eurodollar Rate
Funding shall be determined by the Agent between the opening of
business and 9:00 a.m. (California time) on the second (2nd)
Eurodollar Business Day prior to the beginning of the applicable
Interest Period. Promptly following such determination, the Agent
shall give notice thereof (which may be by telephone if promptly
confirmed by fax) to the Borrower and each Lender. Each such
determination of the applicable Eurodollar Rate shall be
conclusive and binding upon the parties hereto, in the absence of
demonstrable error. The Agent, upon written request of the
Borrower or any Lender, shall deliver to the Borrower or such
requesting Lender a statement showing the computations used by
the Agent in determining the applicable Eurodollar Rate
hereunder.
(c) In no event shall more than six (6) Eurodollar Rate
Fundings be outstanding at any one time. In no event may the
Borrower request a Eurodollar Rate Funding if, after giving
effect to such Eurodollar Rate Funding, the Borrower would be
required to prepay the Eurodollar Rate Funding in order to pay
the principal amount of the related Revolving or Term Loans on
the (as applicable) Revolving Credit or Term Loan Termination
Date. In no event may the Borrower rescind any request for a
Eurodollar Rate Funding once made. Notwithstanding anything to
the contrary in this Agreement, the Agent and the Lenders shall
have no obligation to honor any request for a Eurodollar Rate
Funding if a Default or Event of Default has occurred and is
continuing when such request is made or on the first (1st) day of
the Interest Period applicable thereto. If on or prior to the
first day of any Interest Period the Agent reasonably determines
(which determination shall be conclusive) that, by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or the Required Lenders both
reasonably determine (which determination shall be conclusive)
and notify the Agent that the Eurodollar Rate will not adequately
and fairly reflect the cost to the Lenders of funding the
requested Eurodollar Rate Funding for such Interest Period, then
the Agent shall give the Borrower prompt notice thereof
specifying the amounts or periods and, so long as such condition
remains in effect, the Lenders shall be under no obligation to
fund any Eurodollar Rate Fundings and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Rate Fundings, either prepay such
Eurodollar Rate Fundings or convert such Eurodollar Rate Fundings
into Floating Rate Borrowings in accordance with the terms of
this Agreement. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender
to make, maintain, or fund Advances at the Eurodollar Rate
hereunder, then such Lender shall promptly notify the Borrower
thereof and such Lender's obligation to make, maintain or fund
Advances at the Eurodollar Rate shall be suspended until such
time as such Lender may again make, maintain, and fund Advances
at the Eurodollar Rate. If the obligation of any Lender to make,
maintain or fund Advances at the Eurodollar Rate shall be
suspended pursuant to this Section 2.2.2(c), such Lender's
affected Advances shall be automatically converted into Floating
Rate Advances on the last day(s) of the then current Interest
Period(s) for the affected Advances.
(d) Absent error, the records of the Agent shall be
conclusive evidence as to the amount of each Eurodollar Rate
Funding and the interest rate and Interest Period applicable
thereto.
Section 2.3 Letters of Credit Procedures.
----------------------------
2.3.1 Issuance/Lender Participation.
-----------------------------
(a) Each Letter of Credit, if any, shall be issued
pursuant to a separate L/C Application entered into by the
Borrower, as applicant, completed in a manner satisfactory to the
Agent, and delivered to the Agent at least five(5) Bank Business
Days prior to the date such Letter of Credit is to be issued.
The terms and conditions set forth in each such L/C Application
shall supplement the terms and conditions hereof, but in the
event of inconsistency between the terms of any such L/C
Application and the terms hereof, the terms hereof shall control.
(b) Each Lender shall be deemed to hold a participation
interest in each Letter of Credit equal to that Lender's
Percentage of the face amount of that Letter of Credit. If the
Agent makes any payment pursuant to the terms of any Letter of
Credit and is not promptly reimbursed, the Agent may request that
each Lender pay such Lender's Percentage of the unreimbursed
amount. Upon receipt of any such request prior to 11:00 a.m.
(California time) on a Bank Business Day, the recipient shall be
unconditionally and irrevocably obligated to pay its Percentage
of the unreimbursed amount to the Agent in immediately available
funds prior to 1:00 p.m. (California time) on such date. Notices
received after 11:00 a.m. (California time) shall be deemed to
have been received on the following Bank Business Day. If full
payment is not made by a Lender when due hereunder, then the
applicable Lender agrees to pay to the Agent forthwith on demand
such corresponding amount with interest thereon, for each day
from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Agent, at
the greater of the Federal Funds Rate and a rate determined by
the Agent in accordance with banking industry rules on interbank
compensation. If such Lender pays such amount to the Agent, then
such amount shall constitute such Lender's Percentage in such
Letter of Credit. After making any payment to the Agent under
this subsection in connection with a particular Letter of Credit,
a Lender shall be entitled to participate to the extent of its
Percentage in the related reimbursements and any interest thereon
received by the Agent from the Borrower or otherwise. Upon
receiving any such reimbursement, the Agent will distribute to
each Lender its Percentage of such reimbursement and any interest
thereon.
(c) No Letter of Credit shall be issued with an expiry
date later than ninety (90) days after the Letter of Credit
Termination Date.
(d) Any request for the issuance of a Letter of Credit
under this Section 2.3 shall be deemed to be a representation
that the statements set forth in Article VII hereof are correct
except to the extent that the same relate specifically to an
earlier date.
2.3.2 Payment of Amounts Drawn Under Letters of Credit. The
----------------------------------------------------
Borrower shall pay the Agent any and all amounts required to be paid
under the applicable L/C Application, when and as required to be paid
thereby, including all amounts designated below, when and as
designated:
(a) The Borrower shall pay the Agent on the day a draft is
honored under any Letter of Credit a sum equal to all amounts
drawn under such Letter of Credit plus any and all reasonable
charges and expenses that the Agent may pay or incur relative to
such draw, plus interest on all such amounts, charges and
expenses as set forth below (all such amounts are hereinafter
referred to, collectively, as the "Obligation of Reimbursement").
(b) The Borrower shall pay the Agent on demand interest on
all amounts, charges and expenses payable by the Borrower to the
Agent under this Section 2.3.2, accrued from the date any such
draft is paid, or any such charge or expense is paid or incurred,
by the Agent until payment in full by the Borrower at the
Floating Rate.
(c) Upon the occurrence of any Default or Event of
Default, and so long as any such Default or Event of Default
continues without written waiver thereof by the Required Lenders,
the rate of interest on all amounts, charges and expenses payable
by the Borrower to the Agent under this Section 2.3.2 shall
be the Floating Rate plus four percent (4.00%).
2.3.3 Special Account.
---------------
(a) If the Commitments are terminated in whole pursuant to
Section 5.4, or if an Event of Default shall occur and be
continuing, and in any event on the Letter of Credit Termination
Date, the Borrower shall pay the Agent in immediately available
funds, for deposit in a deposit account established for the sole
purpose of holding such funds, an amount equal to the maximum
aggregate amount available to be drawn under all Letters of
Credit then outstanding, assuming compliance with all conditions
for drawing thereunder (the "Maximum Reimbursement Obligation").
Alternatively, the Borrower may transfer to the Agent cash and
Permissible Securities for deposit in a securities account
established for the sole purpose of holding such funds, of an
aggregate Collateral Value equal to the Maximum Reimbursement
Obligation; provided, however, that if the Borrower wishes to
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transfer Permissible Securities in lieu of cash, it must
simultaneously deliver to the Agent such account and control
agreements and such other documents as the Agent may reasonably
determine are necessary in order to establish and perfect the
security interest referred to in subsection (c), below. Any such
deposit account or securities account shall be referred to herein
as the "Special Account."
(b) "Permissible Securities" means securities described in
Exhibit K, and the "Collateral Value" of a Permissible Security
is its market value, as reasonably determined by the Agent,
multiplied by the percentage determined pursuant to Exhibit K.
The "Collateral Value" of cash is its face value.
(c) The Borrower hereby grants to the Agent, for the
benefit of the Lenders, a security interest in the Special
Account and all funds and Permissible Securities held therein
from time to time and all proceeds thereof, as security for the
payment of all Obligations. Any interest earned on funds and
Permissible Securities deposited in the Special Account shall be
credited to the Special Account. Amounts on deposit in the
Special Account may be applied by the Agent at any time or from
time to time to the Borrower's Obligation of Reimbursement
or any other Obligations, in the Agent's sole discretion, and
shall not be subject to withdrawal by the Borrower so long as
the Agent maintains a security interest therein. The Agent
agrees to transfer any balance of cash or Permissible Securities
in the Special Account to the Borrower at such time as the
Obligations have been paid in full.
2.3.4 Authorization for Borrowing. In the event that the
---------------------------
Borrower shall be obligated to make any payment pursuant to Section
2.3.2 or any payment or transfer of securities pursuant to Section
2.3.3, and shall not have made other arrangements for payment or
transfer of securities as of the due date, then the Agent will
initiate an Advance in an amount not to exceed the amount available to
be borrowed pursuant to Section 2.1.1 without request from the
Borrower and use the proceeds to satisfy such payment obligation. The
procedure for such Borrowing, and the Agent's and Lenders' rights and
Obligations with respect thereto, shall be in all respects identical
to those applicable to an Advance initiated by the Borrower pursuant
to Section 2.1.1, and such Advance shall not itself cause a Default or
Event of Default. The Borrowing in respect of such Advance shall
bear interest at the Floating Rate.
Section 2.4 Second Term Loan Procedures. Funding of the Second
----------------------------
Term Loan shall occur following written request via such form as attached as
Exhibit I or telephonic request to the Agent from the Borrower, with any
telephonic request to be confirmed by fax in such form as attached as Exhibit I.
Such notice or request shall specify, if any portion of such Second Term Loan
will bear interest at a Eurodollar Rate, the Interest Period selected by the
Borrower with respect thereto. Such notice or request must be received by the
Agent not later than 10:00 a.m. (California time) on the Bank Business Day prior
to the Second Term Loan Funding Date or, if all or any portion of the Second
Term Loan will bear interest at a Eurodollar Rate, not later than three
Eurodollar Business Days prior to the Second Term Loan Funding Date. Upon
fulfillment of the foregoing and the applicable conditions set forth in Article
VI, each Lender shall remit its Percentage of the Second Term Loan to the Agent
in immediately available funds not later than 11:00 a.m. (California time) on
the Second Term Loan Funding Date by wire transfer to the account of the Agent
most recently designated by it for such purpose by notice to the Lenders. The
Agent will make such Second Term Loan available to the Borrower by wire
transferring the same to an account designated by the Borrower at First Bank or
in such other manner as the Agent and the Borrower may from time to time agree
in writing, prior to 12:00 noon (California time) on the Second Term Loan
Funding Date. The Agent shall have no obligation to disburse the Second Term
Loan if any condition set forth in Article VI has not been satisfied on the
Second Term Loan Funding Date. Unless the Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Agent such Lender's Percentage of the Second Term Loan,
the Agent may assume that such Lender has made such share available on such date
in accordance with this Section 2.4 and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If a Lender has not in
fact made its Percentage of the applicable Second Term Loan available to the
Agent, then the applicable Lender agrees to pay to the Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Agent, at the greater of the Federal Funds Rate and a rate
determined by the Agent in accordance with banking industry rules on interbank
compensation. If such Lender pays such amount to the Agent, then such amount
shall constitute such Lender's Percentage in such Second Term Loan.
Section 2.5 Use of Proceeds. The proceeds of the Advances shall be
---------------
used by the Borrower (i) to refinance existing indebtedness under the Existing
Credit Agreement; (ii) for its general corporate purposes, including redemption
of subordinated debt in connection with redemption of trust preferred securities
guaranteed by Borrower; and (iii) for Permitted Acquisitions.
ARTICLE III.
EVIDENCING OF LOANS
Section 3.1 Notes. The Revolving Loans made by each Lender shall
-----
be evidenced by and repayable in accordance with a single promissory note of
Borrower payable to the order of such Lender substantially in the form of a
Revolving Note. The Term Loan made by each Lender shall be evidenced by and
repayable in accordance with a single promissory note of Borrower payable to the
order of such Lender substantially in the form of a Term Note.
Section 3.2 Payment of Term Note. The entire original principal
---------------------
balance of the Term Loan (including, after the same is advanced, the Second Term
Loan) made by each Lender shall be repaid in ten (10) equal calendar quarterly
installments, each equal to five percent (5%) of such original principal
balance, and a final payment, equal to the entire remaining principal balance
(and all accrued and unpaid interest and other sums due under this Agreement),
due on the Maturity Date, which is the absolute and final due date of the Term
Loan. The first such quarterly installment shall be due on March 31, 2006, and
on the last day of each calendar quarter thereafter, until the Maturity Date.
Section 3.3 Recordkeeping. The Agent shall record in its records
-------------
the date and amount of each Advance made by each Lender, shall record in its
records the date and amount of each such Advance, each repayment or conversion
thereof and, the case of each Borrowing that will bear interest (or is converted
to bear interest) at a Eurodollar Rate, the dates on which each Interest Period
for Borrowing shall begin and end. The aggregate unpaid principal amount so
recorded shall be rebuttably presumptive evidence of the principal amount of the
Borrowings owing and unpaid. The failure to so record any such amount, or any
error in so recording any such amount, shall not limit or otherwise affect the
Obligations of Borrower hereunder or under any Note to pay the principal amount
of all Borrowings hereunder, together with all interest accruing thereon.
ARTICLE IV.
INTEREST
Section 4.1 Interest Rates. Subject to Section 4.7, Borrower shall
--------------
pay interest on the unpaid principal balance of each Borrowing, for the period
commencing on the date of such Borrowing until such Borrowing is repaid in full,
as follows:
(a) for each Revolving or Term Loan at all times and to the
extent the Eurodollar Rate is not applicable to such Revolving or Term
Loan, the Floating Rate.
(b) for each Revolving or Term Loan to which the Eurodollar
Rate is applicable, the Eurodollar Rate; provided however that, in
determining such Eurodollar Rate, the applicable Margin shall be 87.5
basis points for each Revolving Loan and 100 basis points for each
Term Loan.
Section 4.2 Default Interest Rate. Upon the occurrence of any
----------------------
Default or Event of Default, and so long as such Default or Event of Default
continues without written waiver thereof by the Required Lenders, each Note
shall bear interest at an annual rate that shall be four percent (4.00%) plus
the annual rate at which interest would otherwise accrue on that Note. Accrual
of interest at such increased rate shall not be deemed a waiver or excuse of any
such Default or Event of Default.
Section 4.3 Interest Payments.
-----------------
(a) Interest. Interest accruing on the principal balance of
the Notes shall be due and payable as follows:
(i) Interest accruing on the outstanding principal
balance of the Notes at the Floating Rate each
calendar quarter shall be due and payable on the
last day of that calendar quarter, with the first
quarterly payment of interest due on the last day
of September, 2005; and the last payment of
interest shall be due on the Revolving Credit
Termination Date with respect to Revolving Notes
and on the Maturity Date with respect to Term
Notes.
(ii) Interest on each Eurodollar Rate Funding shall be
due and payable on the last day of the applicable
Interest Period or, if such Interest Period is six
months, on the last day of the third month during
such Interest Period, and on the last day of such
Interest Period.
(b) Principal. The principal balance of the Revolving Notes
shall be due and payable in full on the Revolving Credit Termination
Date. The principal balance of the Term Note shall be due and payable
on the Maturity Date.
Section 4.4 Making of Payments. All payments of principal and
------------------
interest under the Notes and of all fees hereunder shall be made to the Agent in
immediately available funds. Payments received after 11:00 a.m. (California
time) on any day shall be deemed received on the next succeeding Bank Business
Day. The Borrower and the Lenders agree that the amount shown on the books and
records of the Agent as being the principal balance of each Lender's Note shall
be prima facie evidence of such principal amount. Upon Agent's receipt of
written request by Borrower, the Borrower authorizes the Agent to charge against
any account the Borrower may maintain with Wells Fargo Bank, National
Association, an amount equal to the accrued interest and fees from time to time
due and payable to the Agent under the Notes or hereunder, or (at the option of
the Required Lenders) to make an Advance in such amount.
Section 4.5 Payment on Nonbusiness Days. Payments of interest on
----------------------------
Eurodollar Fundings shall be governed by Section 4.3(a)(ii). With respect to all
other payments to be made hereunder or under the Notes, whenever such payments
shall be stated to be due on a day other than a Bank Business Day, such payment
may be made on the next succeeding Bank Business Day, and such extension of time
shall in each case be included in the computation of payment of interest on such
Note or the fees hereunder, as the case may be.
Section 4.6 Computation of Interest and Fees. All interest under
---------------------------------
all Notes, and all fees under this Agreement, shall be computed on the basis of
actual number of days elapsed in a year of 360 days.
Section 4.7 Generally. The Revolving Loan Margin, the Term Loan
---------
Margin and the L/C Margin, through and including the first adjustment occurring
as specified below, shall be 0.875%, 1.00% and 1.00%, respectively. Beginning
with the receipt by the Lenders of the financial statements and Compliance
Certificate for the period ending September 30, 2005, each Margin and the L/C
Margin shall be adjusted each quarter on the basis of the Funded Debt Ratio as
at the end of the previous fiscal quarter, in accordance with the following
table:
Funded Revolving Loan Margin Term Loan Margin L/C Margin
Debt Ratio (in Basis Points) (in Basis points) (in Basis Points)
- ---------- ----------------- ----------------- -----------------
1.75 to 1.00 or more 112.5 125.0 125.0
1.00 to 1.00 or more, but 100.0 112.5 112.5
less than 1.75 to 1.00
Less than 1.00 to 1.00 87.5 100.0 100.0
Reductions and increases in the Margins will be made quarterly on the first day
of the month following the date the Borrower's financial statements and
Compliance Certificate required under Section 8.1 are due. Notwithstanding the
foregoing, (i) if the Borrower fails to deliver any financial statements or
Compliance Certificates when required under Section 8.1, the Agent may (and,
upon request of the Required Lenders, shall), by notice to the Borrower,
increase the Margins to the highest rates set forth above until such time as the
Agent has received all such financial statements and Compliance Certificates,
and (ii) no reduction in any of the Margins will be made if a Default or an
Event of Default has occurred and is continuing at the time that such reduction
would otherwise be made.
ARTICLE V.
FEES, REDUCTIONS AND PREPAYMENTS
Section 5.1 Term and Revolving Loan Commitment Fee. The Borrower
------------------------------------------
shall pay to the Agent, for the benefit of the Lenders, a commitment fee at an
annual rate equal to 20.0 basis points (0.20%) applied to the aggregate daily
average unused amount of both the Revolving Credit Commitment Amounts and, until
funded, the Second Term Loan. This commitment fee shall be due and payable
quarterly in arrears, with the first payment due September 30, 2005 for the
period from the Closing Date through September 30, 2005, and payments due
quarterly thereafter. Any such commitment fee remaining unpaid on the Revolving
Credit Termination Date shall be due and payable on that date.
Section 5.2 Letter of Credit Fees. The Borrower shall pay fees as
---------------------
follows:
(a) Letter of Credit Fees. The Borrower shall pay the Agent
for the benefit of the Lenders a fee with respect to each Letter of
Credit, if any, accruing on a daily basis and computed at an annual
rate equal to the L/C Margin of the aggregate amount that may then be
drawn on all issued and outstanding Letters of Credit from and
including the date of issuance of each such Letter of Credit until
such date as each such Letter of Credit shall terminate by its terms
or be fully drawn, due and payable quarterly in arrears on the last
day of each calendar quarter, commencing September 30, 2005, and on
the date when the last Letter of Credit expires or is fully drawn. The
foregoing fee shall be in addition to any and all fees, commissions
and charges of the Agent with respect to or in connection with any
such Letter of Credit. Upon the occurrence of any Default or Event of
Default, and so long as such Default or Event of Default continues
without written waiver thereof by the Required Lenders, the annual
rate at which such fee accrues shall be four percent (4.00%) plus the
L/C Margin. Accrual of such fee at such increased rate shall not be
deemed a waiver or excuse of any such Default or Event of Default.
(b) Letter of Credit Administrative Fees. The Borrower
shall pay the Agent, on demand, the administrative fees charged by the
Agent in connection with issuing Letters of Credit, honoring drafts
under Letters of Credit, amendments thereto, transfers thereof and all
other activity with respect to Letters of Credit at the then-current
rates published by the Agent for such services rendered on behalf of
customers of the Agent generally and provided to the Borrower.
(c) Letter of Credit Commitment Fee. The Borrowers shall
pay to Agent, for the benefit of Lenders, a commitment fee at an
annual rate equal to 20.0 basis points (.200%) applied to the
aggregate daily average unused amount of the Letter of Credit
Commitment Amount. The commitment fee shall be due and payable
quarterly in arrears with the first quarterly payment due
September 30, 2005. Any such commitment fee remaining unpaid on the
Revolving Credit Termination Date shall be due and payable on that
date.
Section 5.3 Termination or Reduction of the Revolving Credit
-------------------------------------------------------
Commitments. The Borrower may at any time and from time to time upon ten (10)
- -----------
calendar days' prior notice to the Agent permanently terminate the entire
Revolving Credit Commitment or permanently reduce such Commitment in part,
without penalty or premium, provided that (i) such Commitments may not be
terminated while any Advances remain outstanding, (ii) each partial reduction
shall be in the amount of $1,000,000 or a multiple thereof, (iii) any partial
reduction of such Commitments shall be pro rata as to each Lender in accordance
with that Lender's Percentage, and (iv) no reduction shall reduce such
Commitments to an amount less than the aggregate amount of the Advances
outstanding at the time.
Section 5.4 Termination or Reduction of Letter of Credit
-------------------------------------------------------
Commitment. The Borrower may at any time and from time to time upon ten (10)
- ----------
calendar days' prior notice to Agent, permanently terminate the Letter of Credit
Commitment in whole or permanently reduce the Letter of Credit Commitment in
part, without penalty or premium, provided that (i) the Letter of Credit
Commitment shall in all events be terminated in full if the Total Revolving Loan
Commitment Amount is terminated in full pursuant to Section 5.3, (ii) each
partial reduction shall be in the amount of $1,000,000.00 or a multiple thereof,
and (iii) no reduction shall reduce the Letter of Credit Commitment to an amount
less than the aggregate amount of all outstanding Letters of Credit at that
time.
Section 5.5 Voluntary Prepayments. The Borrower may prepay all or a
---------------------
portion of the principal balance of the Revolving and/or Term Notes bearing
interest at a Floating Rate (the "Floating Rate Portion") in whole or in part,
at any time and from time to time; provided that (i) prepayment of any Lender's
such Note must be accompanied by pro rata prepayment of each other Lender's such
Note, (ii) any prepayment of the full amount of any such Note shall include
accrued interest thereon, and (iii) each partial prepayment of the Floating Rate
Portion of such Notes shall be in the principal amount of $1,000,000 or an
integral multiple of $100,000 greater than $1,000,000.
The Borrower may prepay the portion of the principal balance of the
Revolving and/or Term Notes bearing interest at a Eurodollar Rate (the
"Eurodollar Rate Portion") in whole or in part, at any time from time to time;
provided that (i) prepayment of any Lender's such Note must be accompanied by
pro rata prepayment of each other Lender's such Note, (ii) any prepayment of the
full amount of any such Note shall include accrued interest thereon, (iii) each
partial prepayment of the Eurodollar Rate Portion of the Notes shall be in the
principal amount of $1,000,000 or an integral multiple of $100,000 greater than
$1,000,000, (iv) any prepayment of the Eurodollar Rate Portion of such Notes
shall be made only upon three Bank Business Days' notice to the Agent, and (v)
if the prepayment is made on a date other than the last day of the applicable
Interest Period, such prepayment must be accompanied by a written agreement from
Borrower to reimburse the Lenders for any amounts due to the Lenders pursuant to
Section 5.6(b).
Section 5.6 Fees on Advances and Indemnity. The Borrower shall pay
------------------------------
the following (in addition to any interest payable on Advances and any fees or
other amounts payable hereunder):
(a) If at any time the enactment of any new generally
applicable law, rule or regulation or the issuance of a generally
applicable interpretation or administration thereof by any
governmental authority (including, without limitation, Regulation D of
the Federal Reserve Board):
(i) shall subject any Lender to any tax, duty or
other charges (including but not limited to any
tax designed to discourage the purchase or
acquisition of foreign securities or debt
instruments by United States nationals) with
respect to this Agreement, or shall materially
change the basis of taxation of payments to any
Lender of the principal of or interest on any
portion of the principal balance of the Notes
bearing interest at a Eurodollar Rate (except for
the imposition of or changes in respect of the
rate of tax on the overall net income of that
Lender); or
(ii )shall impose or deem applicable or increase any
reserve, special deposit or similar requirement
against assets of, deposits with or for the
account of, or credit extended by any Lender
because of any portion of the principal balance
of any Note bearing interest at a Eurodollar Rate;
and the result of any of the foregoing would be to increase the cost
to that Lender of making or maintaining any such portion or to reduce
any sum received or receivable by that Lender with respect to such
portion, then, within 30 days after demand by any Lender specifying
the basis of the Lender's assertion in reasonable detail, the Borrower
shall pay that Lender such additional amount or amounts as will
compensate that Lender for such increased cost or reduction; provided,
--------
however, that no amount shall be payable by Borrower if the reason
-------
for the additional charges, reserves, special deposit or similar
requirements against a particular Lender arises from a change in the
status of the Lender, rather than from the imposition of such
requirements against commercial lending institutions generally.
(b) The Borrower shall also compensate any Lender, upon
written request by that Lender (which request shall set forth the
basis for requesting such amounts), for all losses and expenses in
respect of any interest or other consideration paid by that Lender to
lenders of funds borrowed by it or deposited with it to maintain any
portion of the principal balance of any Note at a Eurodollar Rate
which that Lender may sustain to the extent not otherwise compensated
for hereunder and not mitigated by the reemployment of such funds to
the extent such loss or expense arises (i) as a consequence of any
failure by the Borrower to make any payment when due of any amount due
hereunder in connection with any Eurodollar Rate Fundings, (ii) due to
any failure of the Borrower to borrow or convert any Eurodollar Rate
Fundings on a date specified therefor in a notice thereof, or (iii)
due to any payment or prepayment of any Eurodollar Rate Funding on a
date other than the last day of the applicable Interest Period for
such Eurodollar Rate Funding. A certificate as to any such loss or
expense (including calculations, in reasonable detail, showing how
that Lender computed such loss or expense) shall be promptly submitted
by that Lender to the Borrower. Such loss or expense may be computed
as though that Lender acquired deposits in the London interbank market
to fund that portion of the principal balance whether or not that
Lender actually did so.
(c) A notice from any Lender under this Section 5.6
claiming compensation and setting forth the additional amount or to be
paid to it hereunder shall be conclusive in the absence of error. In
determining any such amount, a Lender may use any reasonable averaging
and attribution methods.
Section 5.7 Capital Adequacy. In addition to any interest on
----------------
Advances, if any Lender determines at any time that its Return has been reduced
as a result of any Capital Adequacy Rule Change, that Lender may require that
the Borrower pay it the amount necessary to restore its Return to what it would
have been had there been no Capital Adequacy Rule Change. For purposes of this
Section:
(a) "Return," for any period, means the percentage
determined by dividing (i) the sum of interest and ongoing fees earned
by a Lender under this Agreement during such period, by (ii) the
average capital that Lender is required to maintain during such period
as a result of its being a party to this Agreement, as reasonably
determined in good faith by that Lender based upon its total capital
requirements pursuant to the Capital Adequacy Rules then in effect.
Return may be calculated for each calendar quarter and for the shorter
period between the end of a calendar quarter and the date of
termination in whole of this Agreement.
(b) "Capital Adequacy Rule" means any law, rule, regulation
or guideline regarding capital adequacy that applies to any Lender, or
the interpretation thereof by any governmental or regulatory authority
with supervisory authority over such Lender. Capital Adequacy Rules
include rules requiring financial institutions to maintain total
capital in amounts based upon percentages of outstanding loans,
binding loan commitments and letters of credit.
(c) "Capital Adequacy Rule Change" means any change
applicable to banks generally in any Capital Adequacy Rule occurring
after the date of this Agreement, but the term does not include any
changes in applicable requirements that at the date hereof are
scheduled to take place under the existing Capital Adequacy Rules or
any increases in the capital that any Lender is required to maintain
to the extent that the increases are required due to a regulatory
authority's action affecting only that Lender.
(d) For purposes of this Section, "Lender" includes (but is
not limited to) the Agent, the Lenders, as defined elsewhere in this
Agreement, any assignee of any interest of any Lender hereunder and
any participant in the loans made hereunder.
The initial notice sent by a Lender shall be sent as promptly as practicable
after that Lender learns that its Return has been reduced, shall include a
demand for payment of the amount necessary to restore that Lender's Return for
the quarter in which the notice is sent, and shall state in reasonable detail
the cause for the reduction in its Return and its calculation of the amount of
such reduction. Thereafter, that Lender may send a new notice during each
calendar quarter setting forth the calculation of the reduced Return for that
quarter and including a demand for payment of the amount necessary to restore
its Return for that quarter.
Section 5.8 Failure of Any Lender to Make Advances. Should any
-------------------------------------------
Lender default in making an Advance, the other Lenders shall not be released
from their several obligations to make Advances as agreed hereunder, and, in the
event such defaulting Lender is the Agent, the other Lenders shall forthwith
appoint one of themselves to act as Agent. However, such default shall not
obligate any of the Lenders to increase their Commitment Amounts. Without
limiting any other remedies to which the Borrower may be entitled, Borrower
shall be released from all liability to pay such defaulting Lender any accrued
or future fees under Section 5.1 and the other obligations of the Borrower to
such defaulting Lender under the Loan Documents, except the obligation to repay
any outstanding Term Loan and Revolving Loans theretofore made by such Lender
and interest accrued thereon as provided in the Loan Documents, shall terminate;
provided, however, once such default is cured, then such defaulting Lender
- -------- -------
shall, subsequent thereto, have all rights under the Loan Documents.
ARTICLE VI.
CONDITIONS PRECEDENT
Section 6.1 Initial Conditions Precedent. The obligation of the
------------------------------
Lenders to make any Advance and the obligation of the Agent to issue its initial
Letter of Credit (whichever first occurs) is, in addition to the conditions
precedent specified in Section 6.2, subject to the condition precedent that the
Agent shall have received all of the following, each dated (unless otherwise
indicated) as of the date hereof, in form and substance satisfactory to each
Lender:
(a) The Notes, properly executed on behalf of the Borrower.
(b) Current searches of appropriate filing offices showing
that (i) no state or federal tax liens have been filed and remain in
effect against any of the Borrower, First Bank or San Francisco
Company, (ii) no financing statements have been filed and remain in
effect against any of the Borrower, First Bank or San Francisco
Company except financing statements perfecting only Liens permitted
under Section 9.1, and (iii) no judgment liens are in effect against
any of the Borrower, First Bank or San Francisco Company.
(c) Separate certificates of the secretaries of the
Borrower and San Francisco Company certifying, in the case of each
such corporation, (i) that the execution, delivery and performance of
the Loan Documents and other documents contemplated hereunder to which
such corporation is a party have been duly approved by all necessary
action of the Board of Directors of such corporation, and attaching
true and correct copies of the applicable resolutions granting such
approval, (ii) that attached to such certificate are true and correct
copies of the current articles of incorporation and bylaws of such
corporation, as amended, together with such copies, and (iii) the
names of the officers of Borrower such corporation who are authorized
to sign the Loan Documents and other documents contemplated hereunder
to which such corporation is a party, including, with respect to the
Borrower, requests for Advances and L/C Applications, together with
the true signatures of such officers. The Agent and the Lenders may
conclusively rely on each such certificate until they shall receive a
further certificate of the Secretary or Assistant Secretary of the
applicable corporation canceling or amending the prior certificate and
submitting the signatures of the officers named in such further
certificate.
(d) A certificate of good standing of the Borrower, San
Francisco Company and First Bank, dated not more than twenty (20) days
before the date of the first Advance.
(e) A signed copy of an opinion of counsel for the Borrower
and San Francisco Company, addressed to the Lenders as to matters
referred to in Sections 7.1, 7.2, 7.3 and 7.7, and as to such other
matters as the Lenders may reasonably request, with that opinion being
subject to customary assumptions and limitations and reasonably
acceptable to each Lender's counsel. In the case of Section 7.7, the
opinion may be to the best knowledge of such counsel, and, in the case
of Section 7.3, insofar as it relates to enforcement of remedies, it
may be subject to applicable bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally from time to
time, and to usual equity principles.
(f) The Borrower Pledge Agreement, duly executed by the
Borrower.
(g) Certificates representing, in the aggregate, all of the
issued and outstanding capital stock of San Francisco Company and one
blank stock power executed by Borrower for each such certificate.
(h) The San Francisco Company Security Agreement, duly
executed by San Francisco Company.
(i) Certificates representing, in the aggregate, all of the
issued and outstanding capital stock of First Bank and one blank stock
stock power executed by San Francisco Company for each such
certificate.
(j) The San Francisco Company Guaranty, duly executed by
San Francisco Company.
(k) Evidence that all of the Borrower's obligations under
the Existing Credit Agreement have been paid and discharged in full,
or will be so paid and discharged from proceeds of the first
Borrowing.
(l) The Borrower shall have paid the following sums: (i) to
Agent for the benefit of the Lenders, a commitment fee equal to 15
basis points (0.15%) applied to the aggregate of (1) the Letter of
Credit Commitment Amount, (2) all Lenders' Term Loan Commitment
Amounts, and (3) all Lenders' Revolving Credit Commitment amounts;
and (ii) to Agent any fees (in addition to that provided in clause
(i)) provided for in Fee Letter agreement between Borrower and Agent
dated June 7, 2005. Fees provided for at this Section 6.1(l) shall
be in addition to all fees provided for at Article V hereof.
It is acknowledged that Agent currently maintains possession of the documents
described in subsections (g) and (i) pursuant to the Existing Credit Agreement;
and that such possession will satisfy the requirements of such subsections.
Section 6.2 Conditions Precedent to All Advances. The obligation of
------------------------------------
each Lender to make any Advance (including the initial Advance) and the
obligation of the Agent to issue any Letter of Credit shall be subject to the
further conditions precedent that on the date of such Advance:
(a) The representations and warranties contained in Article
VII are correct on and as of the date of such Advance as though made
on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
(b) No event has occurred and is continuing, or would
result from such Advance, which constitutes a Default or an Event of
Default.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders as follows:
Section 7.1 Corporate Existence and Power.
-----------------------------
(a) The Borrower (i) is a corporation duly incorporated,
validly existing and in good standing under the laws of the state
of its incorporation, and is duly licensed or qualified to transact
in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such
licensing or qualification necessary and where failure to be so
licensed or qualified would have a materially adverse impact on its
business or properties; (ii) is in compliance with the requirements of
applicable laws and regulations, the noncompliance with which would
materially and adversely affect its business or financial condition;
and (iii) has all requisite power and authority to conduct its
business, to own its properties and to execute and deliver, and to
perform all of its obligations under, the Loan Documents.
(b) Each Subsidiary (i) is a business entity, including,
but not limited to any corporation, limited liability company,
partnership, limited partnership, limited liability partnership,
business trust, or any similar entity, duly incorporated or organized,
as applicable, validly existing and in good standing under the laws
of the state of its incorporation, organization, or formation, as
applicable, and is duly licensed or qualified to transact business in
all jurisdictions where the character of the property owned or leased
or the nature of the business transacted by it makes such licensing or
qualification necessary and where failure to be so licensed or
qualified would have a materially adverse impact on its business or
properties; (ii) is in compliance with the requirements of applicable
laws and regulations, the noncompliance with which would materially
and adversely affect its business or financial condition; and (iii)
has all requisite power and authority to conduct its business, to
own its properties and to execute and deliver, and to perform all of
its obligations under, the Loan Documents.
Section 7.2 Authorization of Borrowing; No Conflict as to Law or
-------------------------------------------------------
Agreements. The execution, delivery and performance by the Borrower and each of
- ----------
its Subsidiaries of the Loan Documents to which it is a party and the Borrowings
and requests for Letters of Credit from time to time hereunder have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval of the stockholders of the Borrower or any of its
Subsidiaries, or any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, except such as have already been obtained, (ii) violate any provision
of any law, rule or regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) or of any order, writ,
injunction or decree presently in effect having applicability to the Borrower or
any of its Subsidiaries or of the Articles of Incorporation or Bylaws of the
Borrower or any of its Subsidiaries (or Articles of Organization, Operating
Agreement, or any other governing document of a Subsidiary in the case of a
Subsidiary that is organized as a business entity other than a corporation),
(iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other material agreement, lease or instrument to
which the Borrower or any of its Subsidiaries is a party or by which it or its
properties may be bound or affected, or (iv) result in, or require, the creation
or imposition of any Lien or other charge or encumbrance of any nature upon or
with respect to any of the properties now owned or hereafter acquired by the
Borrower or any of its Subsidiaries.
Section 7.3 Legal Agreements. This Agreement and the other Loan
-----------------
Documents to which it is a party constitute the legal, valid and binding
obligations of the Borrower and each of its Subsidiaries, as applicable,
enforceable against each such party in accordance with their respective terms.
Section 7.4 Subsidiaries. Except as listed in Schedule 7.4, as of
------------
the date of this Agreement the Borrower has no direct or indirect Subsidiaries.
The percentage of the capital stock of each Subsidiary owned by the Borrower or
by one or more other Subsidiaries is as set forth in Schedule 7.4.
Section 7.5 Financial Condition. The Borrower has heretofore
--------------------
furnished to the Lenders its audited financial statements as of December 31,
2004, and call reports of the Bank Subsidiaries dated as of March 31, 2005.
Those financial statements fairly present the financial condition of the
Borrower and its Subsidiaries on the dates thereof and the results of their
operations and cash flows for the periods then ended, and were prepared in
accordance with GAAP, subject, in the case of the interim financial statements,
to year-end audit adjustments.
Section 7.6 Adverse Change. There has been no material adverse
--------------
change in the business, properties or condition (financial or otherwise) of the
Borrower or its Subsidiaries since the date of the latest financial statements
referred to in Section 7.5.
Section 7.7 Litigation. Except as disclosed in Schedule 7.7, as of
----------
the date of this Agreement, there are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any of its Subsidiaries or the properties of the Borrower or any of
its Subsidiaries before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which, if determined
adversely to the Borrower or any of its Subsidiaries, would have a material
adverse effect on the financial condition, properties, or operations of the
Borrower or any of its Subsidiaries.
Section 7.8 Regulation U. No part of the proceeds of any Advance
------------
will be used by the Borrower or any Bank Subsidiary directly or indirectly, (i)
to purchase or carry any margin stock (as defined in Regulation U of the Board
of Governors of the Federal Reserve System; herein, the "Board") or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
(ii) for any purpose which entails a violation of, or which is inconsistent
with, the provisions of Regulation U issued by the Board.
Section 7.9 Taxes. The Borrower and each of its Subsidiaries has
-----
paid or caused to be paid to the proper authorities when due all federal, state
and local taxes required to be withheld by it. The Borrower and each of its
Subsidiaries has filed all federal, state and local tax returns which to the
knowledge of the officers of the Borrower are required to be filed, and the
Borrower and each of its Subsidiaries has paid or caused to be paid to the
respective taxing authorities all taxes as shown on said returns or on any
assessment received by it to the extent such taxes have become due, other than
taxes whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which the Borrower or its Subsidiary, as
applicable, has provided adequate reserves in accordance with GAAP.
Section 7.10 Titles. The Borrower or its Subsidiaries, as
------
applicable, have good title to each of the material properties and assets
reflected in the latest audited financial statements referred to in Section 7.5.
Section 7.11 ERISA. As of the date of this Agreement, no Plan
-----
established or maintained by the Borrower or any ERISA Affiliate that is subject
to Part 3 of Subtitle B of Title I of ERISA had an accumulated funding
deficiency (as such term is defined in Section 302 of ERISA) in excess of
$1,000,000 as of the last day of the most recent fiscal year of such Plan ended
prior to the date hereof, and no liability to the PBGC or the Internal Revenue
Service in excess of such amount has been, or is expected by the Borrower or any
ERISA Affiliate to be, incurred with respect to any Plan of the Borrower or any
ERISA Affiliate. Neither the Borrower nor any of its Subsidiaries has any
contingent liability with respect to any post-retirement benefit under a Welfare
Plan as described in Section 3(1) of ERISA, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA.
Section 7.12 Regulatory Matters. Borrower is registered as a bank
-------------------
holding company under the Bank Holding Company Act, as amended ("BHCA"). First
Bank is an "insured depository institution" as defined in the Federal Deposit
Insurance Act, as amended ("FDIA"), and the applicable regulations thereunder
and the deposits of First Bank are insured by the Bank Insurance Fund of the
Federal Deposit Insurance Corporation to the maximum extent permitted under the
FDIA.
ARTICLE VIII.
AFFIRMATIVE COVENANTS
So long as any Note or L/C Application or any other Obligation shall
remain unpaid, any Commitment shall be outstanding or the Agent shall have any
obligation to issue Letters of Credit, the Borrower will comply, and will cause
each of its Subsidiaries to comply, with the following requirements, unless the
Required Lenders shall otherwise consent in writing:
Section 8.1 Reporting Requirements. The Borrower will deliver to
-----------------------
each Lender:
(a) As soon as available, and in any event within ninety
(90) days after the end of each fiscal year of the Borrower, a copy of
the annual audit report of the Borrower with the unqualified opinion
of independent certified public accountants selected by the Borrower
and to which the Agent and the Required Lenders do not reasonably
object.
(b) As soon as available, and in any event within forty-
five (45) days after the end of each fiscal quarter of the Borrower, a
copy of the Borrower's Quarterly Report on Form 10Q filed with the
SEC with respect to such fiscal quarter.
(c) As soon as available, and in any event within ninety
(90) days after the end of each fiscal year of the Borrower, the
Complete Annual Report of Domestic Holding Companies (FRY-6 Report)
required by the Federal Reserve Bank of St. Louis.
(d) As soon as available, and in any event no later
than forty-five (45) days after the end of each calendar quarter,
the complete FRY-9LP and FRY-9C reports required to be filed by the
Borrower and its Subsidiaries quarterly with the Federal Reserve Banks
of the districts where they report.
(e) As soon as available, and in any event within forty-
five (45) days after the end of each calendar quarter, the complete
call report prepared by each Bank Subsidiary at the end of such
calendar quarter in compliance with the requirements of any federal
or state regulatory agency which has authority to examine such Bank
Subsidiary, prepared in accordance with the requirements imposed by
the applicable regulatory authorities and applied on a basis
consistent with the accounting practices reflected in any previous
call reports and similar statements delivered to the Agent prior to
the date of this Agreement.
(f) As soon as available, and in any event within forty-
five (45) days after the end of each calendar quarter, a Compliance
Certificate, duly executed by the chief financial officer of the
Borrower and one (1) additional officer of the Borrower identified
on the signature page of the form of Compliance Certificate of which
Exhibit C is a copy.
(g) Promptly after the Borrower learns of the commencement
of any litigation or proceedings before any governmental or regulatory
agency that would be required to be disclosed by Borrower pursuant to
any applicable provision of either the Securities Act of 1933, the
Securities Exchange Act of 1934, or any applicable regulation under
either thereof (assuming that such litigation or proceeding had then
been determined adversely to the Borrower or any of its Subsidiaries),
notice in writing thereof.
(h) As promptly as practicable (but in any event not later
than five (5) business days) after the Borrower or an executive
officer of any of its Subsidiaries obtains knowledge of the occurrence
of any Default or Event of Default, notice of such occurrence,
together with a detailed statement by a responsible officer of the
Borrower of the steps being taken by the Borrower to cure the effect
of such event.
(i) Promptly upon the filing thereof, copies of all
registration statements and all annual and quarterly reports which the
Borrower or any Subsidiary of the Borrower shall have filed with the
SEC.
(j) Such other information respecting the financial
condition and results of operations of the Borrower or any of its
Subsidiaries as any Lender may from time to time reasonably request.
(k) Promptly after learning of the commencement of any
regulatory action involving safety or soundness issues with respect to
the Borrower or such Subsidiary, and, unless prohibited by applicable
law or regulation, not less than five (5) Business Days before
entering into any agreement or understanding involving any such
issues, notice in writing thereof.
Section 8.2 Books and Records; Inspection and Examination. The
-------------------------------------------------
Borrower and each of its Subsidiaries will keep accurate books of record and
account for itself in which true and complete entries will be made in accordance
with GAAP and, upon request of any Lender, will give any representative of that
Lender reasonable access to, and permit such representative to examine, copy or
make extracts from, any and all books, records and documents in its possession,
to inspect any of its properties and to discuss its affairs, finances and
accounts with any of its principal officers, all at such times during normal
business hours and as often as any Lender may reasonably request; provided,
--------
however, that with respect to the loans made by any Bank Subsidiary, a Lender
- -------
may only review and make copies of summaries of the watch lists prepared on a
quarterly basis and loan credit reports; review of specific loan accounts and
loan review reports may be requested by any Lender, whereupon the Borrower and
such Lender shall within ten (10) days agree to the number of such accounts and
reports that are reasonable and appropriate to review; provided further,
-------- -------
however, that during the continuance of any Default or Event of Default, there
- -------
shall be no restrictions upon the scope of the review, inspection and
reproduction rights of the Lenders concerning the loans of any Bank Subsidiary.
Section 8.3 Compliance with Laws. The Borrower and each of its
---------------------
Subsidiaries will comply with the requirements of applicable laws and
regulations, the noncompliance with which would materially and adversely affect
its business or the financial condition of the Borrower or any of its
Subsidiaries.
Section 8.4 Payment of Taxes and Other Claims. The Borrower and
---------------------------------
each of its Subsidiaries will pay or discharge, when due, (a) all taxes,
assessments and governmental charges levied or imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, (b) all federal, state and local taxes required
to be withheld by it, and (c) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien or charge upon any
properties of the Borrower or any of its Subsidiaries; provided, that neither
the Borrower nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which the Borrower or
its Subsidiary, as applicable, has provided adequate reserves in accordance with
GAAP.
Section 8.5 Operations. The Borrower will, and will cause each of
----------
its Subsidiaries to, operate and maintain its business and property in the
ordinary course in a prudent manner consistent with sound banking practices and
in such a manner that the performance by the Borrower of its Obligations
hereunder is not jeopardized or impaired.
Section 8.6 Insurance. The Borrower and each of its Subsidiaries
---------
will obtain and maintain insurance with insurers believed by it to be
responsible and reputable, in such amounts and against such risks as the
Borrower considers prudent and economical. Without limiting the foregoing, the
Borrower will cause the Bank Subsidiaries to maintain blanket bond coverage,
property and casualty coverage, and errors and omissions coverage as customary
for banks.
Section 8.7 Preservation of Corporate Existence. The Borrower and
-----------------------------------
each of its Subsidiaries will preserve and maintain its corporate existence and
all of its material rights, privileges and franchises; provided, however, that
-------- -------
neither the Borrower nor its Subsidiaries shall be required to preserve any of
its rights, privileges and franchises if its Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not disadvantageous in any material
respect to any Lender as a holder of a Note.
Section 8.8 Additional Collateral. The Borrower will deliver, and
---------------------
cause San Francisco Company to deliver, to the Agent any shares of capital stock
of any FDIC-insured financial institution or its holding company acquired in
whole or in part with the proceeds of Advances if either (A) 20 percent or more
of any class of the voting securities of such entity are acquired (including for
such purpose any such voting securities then owned by Borrower and any
Subsidiary), or (B) the Borrower's investment therein is $2 million or more
(including for such purpose any outstanding investment theretofore made);
provided, however, that the Borrower need not deliver such shares if such entity
- -------- -------
is immediately merged with or consolidated into a Subsidiary. Any shares of
capital stock so delivered shall constitute additional Collateral under the
Borrower Pledge Agreement (if delivered by the Borrower) or the San Francisco
Company Security Agreement (if delivered by San Francisco Company). The Borrower
need not deliver to the Agent any shares of capital stock of any FDIC-insured
financial institution or its holding company acquired in whole or in part with
the proceeds of Advances unless and until it either has acquired 20 percent or
more of any class of the voting securities or its investment therein becomes at
least $2 million or more; however the Borrower will not, and will not permit San
Francisco Company to, grant any security interest in such shares to any third
party.
Section 8.9 Notice of Acquisition. Within five (5) days after the
---------------------
Borrower or a Subsidiary enters into a definitive agreement in connection with a
Permitted Acquisition of an entity whose assets are equal to or in excess of
$500,000,000, the Borrower will notify the Agent of such acquisition in writing.
Any notice required by the immediately preceding sentence shall be accompanied
by a Schedule in the form of Exhibit L, duly completed and executed on behalf of
the Borrower, demonstrating that the subject Permitted Acquisition will not
result in an Event of Default.
ARTICLE IX.
NEGATIVE COVENANTS
So long as any Note or any other Obligation shall remain unpaid, any
Commitments shall be outstanding, or the Agent shall have any obligation to
issue Letters of Credit, the Borrower will comply, and will cause each of its
Subsidiaries to comply, with the following covenants unless the Required Lenders
shall otherwise consent in writing:
Section 9.1 Liens. The Borrower will not create, incur, assume or
-----
suffer to exist, or permit San Francisco Company to create, incur, assume or
suffer to exist, any Lien or other charge or encumbrance of any nature on any of
the Collateral, now owned or hereafter acquired, or assign or otherwise convey
any right to receive income with respect to the Collateral or give its consent
to the subordination of any right or claim of the Borrower to any right or claim
of any other Person.
Section 9.2 Indebtedness. Neither the Borrower nor any of its
------------
Subsidiaries that are not Bank Subsidiaries will incur, create, assume or permit
to exist any indebtedness or liability on account of deposits or advances or any
indebtedness for borrowed money, or any other indebtedness or liability
evidenced by notes, bonds, debentures or similar obligations, except:
(a) Indebtedness to the Lenders under the Notes.
(b) Indebtedness of the Borrower or its Subsidiaries listed
in Schedule 9.2 hereto, and any extensions or renewals thereof.
(c) Indebtedness of the Borrower or any of its Subsidiaries
that may be treated as regulatory capital, or that is issued to
provide a source of repayment of securities that may be treated as
regulatory capital, of the Borrower or such Subsidiary.
(d) Subordinated Debt, or renewals or extensions thereof.
(e) Indebtedness not otherwise permitted under this Section
9.2, so long as all such indebtedness does not exceed $5,000,000 in
the aggregate outstanding at any one time.
Section 9.3. Guaranties. Neither the Borrower nor any of its
----------
Subsidiaries will assume, guarantee, endorse or otherwise become directly or
contingently liable in connection with any obligations of any other Person,
except:
(a) The endorsement of negotiable instruments by the
Borrower or any of its Subsidiaries for deposit or collection or
similar transactions in the ordinary course of business.
(b) Guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons in
existence on the date hereof and listed in Schedule 9.3 hereto.
(c) Letters of credit and other obligations in the nature
of guaranties incurred by the Bank Subsidiaries in the ordinary course
of their banking businesses.
(d) Guaranties of obligations permitted by Section 9.2(c).
(e) Other assumptions, guarantees, endorsements and similar
liabilities in connection with obligations of other Persons, not in
excess of $5,000,000 in the aggregate outstanding at any one time.
Section 9.4 Shareholder Redemptions. The Borrower will not make any
-----------------------
payments on account of the purchase, redemption or other retirement of any of
its common stock or preferred stock, directly or indirectly.
Section 9.5 Acquisitions. Neither the Borrower nor any of its
------------
Subsidiaries will engage in an Acquisition with any Person, whether as acquirer
or acquiree, or engage in any other transaction analogous in purpose or effect
to an Acquisition, except that the foregoing shall not prohibit any Permitted
Acquisition.
Section 9.6 Subordinated Debt. Neither the Borrower nor any of its
-----------------
Subsidiaries will (i) make any payment of, or acquire, any Subordinated Debt
except as expressly permitted by the subordination provision thereof; (ii) give
security for all or any part of such Subordinated Debt; (iii) amend or cancel
the subordination provisions of such Subordinated Debt; (iv) take or omit to
take any action as a result of which the subordination of such Subordinated Debt
or any part thereof to the Notes might be terminated, impaired or adversely
affected; or (v) omit to give the Lenders prompt written notice of any default
under any agreement or instrument relating to such Subordinated Debt by reason
whereof such Subordinated Debt might become or be declared to be immediately due
and payable.
Section 9.7 Restrictions on Nature of Business. The Borrower will
----------------------------------
not, and will not permit any of its Subsidiaries to, change the nature of its
business substantially, and will not engage, or permit any of its Subsidiaries
to engage, in any line of business if, as a result thereof, the business of the
Borrower and its Subsidiaries, taken as a whole, would not be predominantly the
banking and thrift business (including activities deemed closely related to
banking and/or thrift business by applicable regulatory authorities) as
currently constituted.
Section 9.8 Negative Pledges; Subsidiary Restrictions. The Borrower
-----------------------------------------
will not, and will not permit any Subsidiary (including Bank Subsidiaries) to,
enter into any agreement, bond, note or other instrument with or for the benefit
of any Person other than the Lenders which would (i) prohibit the Borrower or
such Subsidiary from granting, or otherwise limit the ability of the Borrower or
such Subsidiary to grant, to the Lenders any Lien on any assets or properties of
the Borrower or such Subsidiary (it being agreed, however, that nothing herein
shall preclude the Bank Subsidiaries from granting security interests to secure
deposits), or (ii) require the Borrower or such Subsidiary to grant a Lien to
any other Person if the Borrower or such Subsidiary grants any Lien to the
Lenders. Except pursuant to any applicable law or regulation, the Borrower will
not permit any Subsidiary to place or allow any restriction, directly or
indirectly, on the ability of such Subsidiary to (a) pay dividends or any
distributions on or with respect to such Subsidiary's capital stock or (b) make
loans or other cash payments to the Borrower.
Section 9.9 Issuance of Additional Stock. Neither the Borrower nor
----------------------------
any Subsidiary whose shares are pledged pursuant to either the Borrower Pledge
Agreement or the San Francisco Company Security Agreement will (and Borrower
will not permit any of the same) to issue any additional shares of capital stock
unless such additional shares are immediately pledged pursuant to the Borrower
Pledge Agreement or the San Francisco Company Security Agreement, as applicable.
Section 9.10 Regulatory Matters. Borrower shall not cease to be
-------------------
registered as a bank holding company under the BHCA. First Bank shall not cease
to be an insured depository institution as defined in the FDIA nor shall its
deposits cease to be insured by the Bank Insurance Fund of the Federal Deposit
Insurance Corporation to the maximum extent permitted under the FDIA.
Section 9.11 Dividends. Neither Borrower nor any Subsidiary shall
---------
pay any dividends or make any distribution in respect of its common or preferred
stock (other than dividends payable in the payor's own common stock or dividends
paid to Borrower) excepting only that (i) the Borrower may declare or pay cash
dividends to holders of the common or preferred stock of Borrower provided the
aggregate amount of all such cash dividends declared or paid in such fiscal year
do not exceed 25% of Borrower's consolidated net income for the immediately
preceding fiscal year and (ii) a trust issuer may pay distributions on both its
trust preferred securities and its common securities, in each case in accordance
with their respective terms; provided however that, notwithstanding the
foregoing, no cash dividends or other distribution may be declared or paid if
either a Default exists on the date of such declaration or payment or a Default
will result therefrom.
ARTICLE X.
FINANCIAL COVENANTS
Section 10.1 Total Risk Based Capital Ratio. The Borrower shall
------------------------------
maintain on a consolidated basis, and shall cause each Bank Subsidiary to
maintain, its Total Risk Based Capital Ratio at not less than 10%, determined as
of each quarter end.
Section 10.2 Tier I Risk Based Capital Ratio. The Borrower shall
--------------------------------
maintain on a consolidated basis, and shall cause each Bank Subsidiary to
maintain, its Tier I Risk Based Capital Ratio at not less than six percent (6%),
determined as of each quarter end.
Section 10.3 Leverage Ratio. The Borrower shall maintain on a
---------------
consolidated basis, and shall cause each Bank Subsidiary to maintain, a minimum
Tier I Leverage Ratio of not less than 5%, determined as of each quarter end.
Section 10.4 Minimum Return on Assets. The Borrower will maintain
------------------------
(on a consolidated basis) its Return on Assets, determined as of each calendar
quarter end, at not less than .70%.
Section 10.5 Maximum Non-Performing Assets. The Borrower will
--------------------------------
maintain on a consolidated basis, its Non-Performing Assets at an amount not
greater than twenty percent (20%) of its Primary Equity Capital, determined as
of the end of each calendar quarter.
Section 10.6 Allowance for Loan and Lease Losses. The Borrower will
-------------------------------------
maintain, on a consolidated basis, its allowance for loan and lease losses at
not less than 100% of its Non-Performing Assets. The allowance for loan and
lease losses at any time shall be the amount set forth in the most recent
quarterly report on Form 10-Q or annual report on Form 10-K filed by the
Borrower with the SEC (or any successor report).
ARTICLE XI.
EVENTS OF DEFAULT, RIGHTS AND REMEDIES
Section 11.1 Events of Default. "Event of Default", wherever used
------------------
herein, means any one of the following events:
(a) Default in the payment of principal of any Note when
the same becomes due and payable.
(b) Default in the payment of interest on any Note or of
any fees or other amounts required to be paid under this Agreement,
and the continuance of such default for a period of ten days or more.
(c) Failure to pay when due any amount specified in Section
2.3.2 hereof relating to the Borrower's Obligation of Reimbursement,
or failure to pay immediately when due any amounts required to be paid
for deposit in the Special Account.
(d) Default in the performance, or breach, of any covenant
or agreement on the part of the Borrower contained in any Financial
Covenant or in Article IX hereof.
(e) Default in a material respect in the performance, or
breach, of any covenant or agreement of the Borrower in this Agreement
(other than a covenant or agreement a default in whose performance or
whose breach is elsewhere specifically dealt with in this Section),
and the continuance of such default or breach for a period of 30 days
after the date on which an executive officer of the Borrower or any of
its Subsidiaries first obtains knowledge of such default or breach.
(f) Any representation or warranty made by the Borrower in
this Agreement or by the Borrower (or any of its officers) or any of
its Subsidiaries (or any of its officers) in any other Loan Document,
certificate, instrument, or statement contemplated by or made or
delivered pursuant to or in connection with this Agreement, shall
prove to have been incorrect or misleading in any material respect
when made.
(g) A default under any bond, debenture, note or other
evidence of indebtedness of the Borrower or any of its Subsidiaries in
excess of $2,000,000 (other than to the Lenders) or under any
indenture or other instrument under which any such evidence of
indebtedness has been issued or by which it is governed where a party
thereto has the right to accelerate any indebtedness owing thereunder
to such party from the Borrower or any of its Subsidiaries as a result
of such default, or any default by the Borrower or any of its
Subsidiaries in the payment of required principal or interest under
any of the foregoing agreements or instruments.
(h) An event of default shall occur under any security
agreement, mortgage, deed of trust, assignment or other instrument or
agreement directly or indirectly securing any obligations of the
Borrower hereunder or under any Note or under any guaranty of such
obligations.
(i) Default in the payment of any amount in excess of
$2,000,000 owed by the Borrower or any of its Subsidiaries to any
Lender other than hereunder or under the Notes and the expiration of
the applicable period of grace, if any, with respect thereto;
provided, however, that if such default shall be cured by the Borrower
-------- -------
or its Subsidiary, as applicable, as may be permitted by the terms of
such indebtedness, or waived by the Lender holding such indebtedness,
in each case prior to the commencement of any action under Section
11.2, then the Event of Default hereunder by reason of such default
shall be deemed likewise to have been thereupon cured or waived.
(j) The Borrower or any of its Subsidiaries shall be
adjudicated a bankrupt or insolvent, or admit in writing its inability
to pay its debts as they mature, or make an assignment for the benefit
of creditors; or the Borrower or any of its Subsidiaries shall apply
for or consent to the appointment of any receiver, trustee, or similar
officer for it or for all or any substantial part of its property; or
such receiver, trustee or similar officer shall be appointed without
the application or consent of the Borrower or its Subsidiary, as
applicable, and such appointment shall continue undischarged for a
period of thirty (30) calendar days; or the Borrower or any of its
Subsidiaries shall institute (by petition, application, answer,
consent or otherwise) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition, application or
otherwise) against the Borrower or any of its Subsidiaries and shall
continue without dismissal for a period of thirty (30) calendar days;
or any judgment, writ, warrant of attachment or execution or similar
process shall be issued or levied against a substantial part of the
property of the Borrower or any of its Subsidiaries and such judgment,
writ, or similar process shall not be released, vacated or fully
bonded within thirty (30) days after its issue or levy.
(k) A petition shall be filed by the Borrower or any of its
Subsidiaries under the United States Bankruptcy Code naming the
Borrower or any of its Subsidiaries as debtor; or an involuntary
petition shall be filed against the Borrower or any of its
Subsidiaries under the United States Bankruptcy Code, and such
petition shall not have been dismissed within forty-five (45) days
after the Borrower or the applicable Subsidiary has received notice of
such filing; or an order for relief shall be entered in any case under
the United States Bankruptcy Code naming the Borrower or any of its
Subsidiaries as debtor.
(l) The rendering against the Borrower or any of its
Subsidiaries of a final judgment, decree or order for the payment of
money in excess of $10,000,000 and the continuance of such judgment,
decree or order unsatisfied and in effect for any period of thirty
(30) consecutive days without a stay of execution or other similar
relief.
(m) A writ of attachment, garnishment, levy or similar
process shall be issued against or served upon the Agent or any Lender
with respect to (i) any property of the Borrower or any of its
Subsidiaries in the possession of the Agent or such Lender, or (ii)
any indebtedness of the Agent or such Lender to the Borrower or any of
its Subsidiaries, and the same shall not be lifted within 30 days.
(n) A trustee shall have been appointed by an appropriate
United States District Court to administer any Plan, or the PBGC,
shall have instituted proceedings to terminate any Plan or to appoint
a trustee to administer any Plan, or withdrawal liability shall have
been asserted against the Borrower or any ERISA Affiliate by a
Multiemployer Plan; or the Borrower or any ERISA Affiliate shall have
incurred liability to the PBGC, the Internal Revenue Service, the
Department of Labor or Plan participants in excess of $2,000,000 with
respect to any Plan; or any Reportable Event that the Required Lenders
may determine in good faith might constitute grounds for the
termination of any Plan, for the appointment by the appropriate United
States District Court of a trustee to administer any Plan or for the
imposition of withdrawal liability with respect to a Multiemployer
Plan, shall have occurred and be continuing thirty (30) days after
written notice to such effect shall have been given to the Borrower by
the Lenders.
(o) The issuance against the Borrower or any Subsidiary of
the Borrower (including without limitation, any Bank Subsidiary) of
any informal or formal administrative action, temporary or permanent,
by any federal or state regulatory agency having jurisdiction or
control over the Borrower or such Subsidiary, such action taking the
form of, but not limited to: (i) any directive citing conditions or
activities deemed to be unsafe or unsound or breaches of fiduciary
duty or law or regulation; (ii) a memorandum of understanding; (iii) a
cease and desist order; (iv) the termination of insurance coverage of
customer deposits by the Federal Deposit Insurance Corporation; (v)
the suspension or removal of an executive officer or director, or the
prohibition of participation by any others in the business affairs of
the Borrower or such Subsidiary; (vi) a capital maintenance agreement;
or (vii) any other regulatory action, agreement or understanding
involving safety or soundness issues with respect to the Borrower or
such Subsidiary which the Required Lenders reasonably believe may have
a material adverse effect on Borrower or any Subsidiary. An Event of
Default under clause (vii) above shall occur only upon written notice
to Borrower of the Required Lenders' determination.
(p) James F. Dierberg, Mary W. Dierberg, members of their
immediate family, and trusts, partnerships and other organizations of
which they have effective voting Control shall cease to own in the
aggregate at least fifty-one percent (51%) of the voting shares of the
Borrower.
Section 11.2 Rights and Remedies. Upon the occurrence of an Event
-------------------
of Default or at any time thereafter until such Event of Default is cured to the
written satisfaction of the Required Lenders, the Agent may, with the consent of
the Required Lenders, and shall, upon written request of the Required Lenders:
(a) By notice to the Borrower, declare the Commitments and
the Agent's obligation to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate.
(b) By notice to the Borrower, declare the entire
unpaid principal amount of the Notes then outstanding, all interest
accrued and unpaid thereon, and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all
such accrued interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived
by the Borrower.
(c) By notice to the Borrower, require the Borrower to pay
to the Agent in immediately available funds, for deposit in the
Special Account, an amount equal to the maximum aggregate amount
available to be drawn under all Letters of Credit then outstanding.
(d) Without notice to the Borrower and without further
action, apply (and direct each Lender to apply) any and all money
owing by any Lender to the Borrower to the payment of the Notes then
outstanding, including interest accrued thereon, and of all other
Obligations.
(e) Exercise any other rights and remedies available to the
Agent and the Lenders by law or agreement.
Notwithstanding the foregoing, upon the occurrence of an Event of Default
described in Section 11.1(j) or (k) hereof, the entire unpaid principal amount
of the Notes then outstanding, all interest accrued and unpaid thereon, and all
other Obligations shall be immediately due and payable without presentment,
demand, protest or notice of any kind.
Section 11.3 Offset. In addition to the remedies set forth in
------
Section 11.2, upon the occurrence of any Event of Default and thereafter while
the same be continuing, the Borrower hereby irrevocably authorizes each Lender
to set off any Obligations owed to such Lender (including for this purpose all
participations in Letters of Credit owned by such Lender) against all deposits
and credits of the Borrower with, and any and all claims of the Borrower
against, such Lender. Such right shall exist whether or not such Lender shall
have made any demand hereunder or under any other Loan Document, whether or not
the Obligations, or any part thereof, or deposits and credits held for the
account of the Borrower is or are matured or unmatured, and regardless of the
existence or adequacy of any collateral, guaranty or any other security, right
or remedy available to such Lender or Lenders. Each Lender agrees that, as
promptly as is reasonably possible after the exercise of any such setoff right,
it shall notify the Borrower of its exercise of such setoff right; provided,
--------
however, that the failure of such Lender to provide such notice shall not affect
- -------
the validity of the exercise of such setoff rights.
ARTICLE XII.
THE AGENT
Section 12.1 Authorization. Each Lender and the holder of each Note
-------------
irrevocably appoints and authorizes the Agent to act on behalf of such Lender or
holder to the extent provided herein or in any document or instrument delivered
hereunder or in connection herewith, and to take such other action as may be
reasonably incidental thereto.
Section 12.2 Distribution of Payments and Proceeds.
-------------------------------------
(a) After deduction of any costs of collection as hereinafter
provided, the Agent shall remit to each Lender that Lender's
Percentage of all payments of principal, interest, fees and other
amounts for the account of the Lenders that are received by the Agent
under the Loan Documents. Each Lender's interest in the Loan Documents
shall be payable solely from payments, collections and proceeds
actually received by the Agent under the Loan Documents; and the
Agent's only liability to the Lenders hereunder shall be to account
for each Lender's Percentage of such payments, collections and
proceeds in accordance with this Agreement. If the Agent is ever
required for any reason to refund any such payments, collections or
proceeds, each Lender will refund to the Agent, upon demand, its
Percentage of such payments, collections or proceeds, together with
its Percentage of interest or penalties, if any, payable by the Agent
in connection with such refund. The Agent may, in its sole discretion,
make payment to the Lenders in anticipation of receipt of payment from
the Borrower. If the Agent fails to receive any such anticipated
payment from the Borrower, each Lender shall promptly refund to the
Agent, upon demand, any such payment made to it in anticipation of
payment from the Borrower, together with interest for each day on such
amount until so refunded at a rate equal to the Federal Funds Rate for
each such date.
(b) Notwithstanding the foregoing, if any Lender has
wrongfully refused to fund its Percentage of any Borrowing or other
Advance as required hereunder, or if the principal balance of any
Lender's Note is for any other reason less than its Percentage of the
aggregate principal balances of the Notes then outstanding, the Agent
may remit all payments received by it to the other Lenders until such
payments have reduced the aggregate amounts owed by the Borrower to
the extent that the aggregate amount owing to such Lender hereunder is
equal to its Percentage of the aggregate amount owing to all of the
Lenders hereunder. The provisions of this paragraph are intended only
to set forth certain rules for the application of payments, proceeds
and collections in the event that a Lender has breached its
obligations hereunder and shall not be deemed to excuse any Lender
from such obligations.
Section 12.3 Expenses. All payments, collections and proceeds
--------
received or effected by the Agent may be applied, first, to pay or reimburse the
Agent for all costs, expenses, damages and liabilities at any time incurred by
or imposed upon the Agent in connection with this Agreement or any other Loan
Document (including but not limited to all reasonable attorney's fees,
foreclosure expenses and advances made to protect the security of any
Collateral). If the Agent does not receive payments, collections or proceeds
sufficient to cover any such costs, expenses, damages or liabilities within
thirty (30) days after their incurrence or imposition, each Lender shall, upon
demand, remit to the Agent its Percentage of the difference between (i) such
costs, expenses, damages and liabilities, and (ii) such payments, collections
and proceeds.
Section 12.4 Payments Received Directly by Lenders. If any Lender or
-------------------------------------
other holder of a Note shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on account of
principal of or interest on any Note other than through distributions made in
accordance with Section 12.2, such Lender or holder shall promptly give notice
of such fact to the Agent and shall purchase from the other Lenders or holders
such participations in the Notes held by them as shall be necessary to cause the
purchasing Lender or holder to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any portion of the
-------- -------
excess payment or other recovery is thereafter recovered from such purchasing
Lender or holder, the purchase shall be rescinded and the purchasing Lender
restored to the extent of such recovery (but without interest thereon).
Section 12.5 Indemnification. The Agent shall not be required to do
---------------
any act hereunder or under any other document or instrument delivered
hereunder or in connection herewith or take any action toward the execution or
enforcement of the agency hereby created, or to prosecute or defend any suit in
respect of this Agreement or the Notes or any documents or instrument delivered
hereunder or in connection herewith unless indemnified to its satisfaction by
the holders of the Notes against loss, cost, liability and expense; provided,
--------
however, that no Lender shall be obligated to indemnify the Agent for any
- -------
portion of any such loss, cost, liability or expense resulting from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and not commence or
cease to do the acts indemnified against until such additional indemnity is
furnished.
Section 12.6 Limitations on Agent's Power. Notwithstanding any other
----------------------------
provision of this Agreement, the Agent shall not have the power, without the
consent of all of the Lenders, to (i) forgive any indebtedness of the Borrower
arising under this Agreement or the Notes, (ii) agree to reduce the rate of
interest charged under this Agreement or the commitment fees payable under
Sections 5.1 and 5.2, (iii) agree to extend the maturity or decrease the amount
of any payment (whether of principal, interest, fees or otherwise) due under
this Agreement or the Notes, (iv) release any Collateral from the Lien created
by the Borrower Pledge Agreement or the San Francisco Company Security
Agreement, or (v) amend the definition of "Required Lenders" in Section 1.1. In
addition, in no event may the Agent increase the total Commitment Amount (being
the aggregate sum of all Commitment Amounts of all Lenders) hereunder without
the consent of all Lenders or increase or decrease the Commitment Amount of any
given Lender without the consent of that Lender.
Section 12.7 Exculpation. The Agent shall be entitled to rely upon
-----------
advice of counsel concerning legal matters, and upon this Agreement, any Loan
Document and any schedule, certificate, statement, report, notice or other
writing which it believes to be genuine or to have been presented by a proper
Person. Neither the Agent nor any of its directors, officers, employees or
agents shall (a) be responsible for any recitals, representations or warranties
contained in, or for the execution, validity, genuineness, effectiveness or
enforceability of this Agreement, any Loan Document, or any other instrument or
document delivered hereunder or in connection herewith, (b) be responsible for
the validity, genuineness, perfection, effectiveness, enforceability, existence,
value or enforcement of any collateral security, (c) be under any duty to
inquire into or pass upon any of the foregoing matters, or to make any inquiry
concerning the performance by the Borrower or any other obligor of its
obligations, or (d) in any event, be liable as such for any action taken or
omitted by it or them, except for its or their own gross negligence or willful
misconduct. The agency hereby created shall in no way impair or affect any of
the rights and powers of, or impose any duties or obligations upon, the Agent in
its individual capacity.
Section 12.8 Agent and Affiliates. The Agent shall have the same
--------------------
rights and powers hereunder in its individual capacity as any other Lender, and
may exercise or refrain from exercising the same as though it were not the
Agent, and the Agent and its affiliates may accept deposits from and generally
engage in any kind of business with the Borrower as fully as if the Agent were
not the Agent hereunder.
Section 12.9 Credit Investigation. Each Lender acknowledges that
---------------------
it has made such inquiries and taken such care on its own behalf as would have
been the case had its Commitment been granted and the Advances made directly by
such Lender to the Borrower without the intervention of the Agent or any other
Lender. Each Lender agrees and acknowledges that the Agent makes no
representations or warranties about the creditworthiness of the Borrower, any
Subsidiary or any other party to this Agreement or with respect to the legality,
validity, sufficiency or enforceability of this Agreement, any Loan Document, or
any other instrument or document delivered hereunder or in connection herewith.
Section 12.10 Resignation. The Agent may resign as such at any time
-----------
upon at least thirty (30) calendar days' prior notice to the Borrower and the
Lenders. In the event of any resignation of the Agent, the Required Lenders
shall as promptly as practicable appoint a successor Agent. If no such successor
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) calendar days after the resigning
Agent's giving of notice of resignation, then the resigning Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State
thereof. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon be entitled to receive
from the prior Agent such documents of transfer and assignment as such successor
Agent may reasonably request and the resigning Agent shall be discharged from
its duties and obligations under this Agreement. After any resignation pursuant
to this Section, the provisions of this Section shall inure to the benefit of
the resigning Agent as to any actions taken or omitted to be taken by it while
it was an Agent hereunder.
Section 12.11 Assignments.
-----------
(a) No Lender may assign any of its rights or obligations
under any Loan Document without the prior written consent of the
Borrower and the Agent, which consent may not be unreasonably
withheld; provided, however, that the consent of the Borrower shall
-------- -------
not be required in connection with any such assignment made at any
time when a Default or an Event of Default has occurred and is
continuing. Any assignment permitted hereunder shall be by written
assignment agreement in form and substance reasonably satisfactory to
Agent which assignment agreement shall be acknowledged by both Agent
and Borrower. The aggregate principal amount of the Notes and the
portion of the Commitment Amounts so assigned in any assignment shall
be not less than $5,000,000, and the assigning Lender shall retain at
least $5,000,000 of such Notes and Commitment Amounts for its own
account; provided, however, that the foregoing restriction shall not
-------- -------
apply to a Lender assigning its entire Note and Commitment Amount to a
single institution. Simultaneously with each assignment of Notes and
Commitment Amounts, the assigning Lender shall be deemed to have
assigned a proportional share of its obligations and rights under
Section 2.3.1(b). If the Agent and (if applicable) the Borrower so
consent, then, from and after the effective date of any such
assignment, the assignee thereunder (an "Additional Lender") shall, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such assignment, have the rights and obligations so
assigned to it, and the assigning Lender shall, to the extent that
rights and obligations have been assigned by it pursuant to such
assignment, relinquish its rights and be released from its obligations
under this Agreement. Within five (5) Bank Business Days after any
request of the Agent following such assignment of Notes and Commitment
Amounts, the Borrower will execute and deliver to the Agent new Notes
to the order of such assignee in amounts corresponding to the interest
in the assigning Lender's rights and obligations under this Agreement
acquired by such assignee pursuant to such assignment and, if the
assigning Lender has retained an interest in such rights and
obligations, new Notes to the order of the assigning Lender in amounts
corresponding to such interests retained by it hereunder. Such new
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of the Notes to be replaced by such new Notes, shall
be dated the effective date of such assignment and shall otherwise be
in the form of the Notes to be replaced thereby. Such new Notes shall
be issued in substitution for, but not in satisfaction or payment of,
the Notes being replaced thereby. The Agent shall bear the cost of
preparation of such new Notes. Upon the issuance of such new Notes,
the term, "Notes," as used herein, shall include all such new Notes
issued pursuant to this Section 12.11.
(b) Any Lender making an assignment under this Section
shall pay the Agent a transfer fee in the amount of $3,000
simultaneous with such assignment.
(c) Notwithstanding any other provision of this Agreement,
any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement and that Lender's Notes in
favor of any Federal Reserve Bank in accordance with Regulation A of
the Board of Governors of the Federal Reserve System.
(d) Except as set forth in this Section 12.11 and the
following Section 12.12, no Lender may assign any of its rights or
obligations under any Loan Document.
Section 12.12 Participations. In addition to the rights granted in
--------------
Section 12.11, each Lender may grant participations in a portion of its Notes,
Commitments and obligations under Section 2.3.1(b) to any institutional
investor, without the consent of the Borrower or the Agent, but only so long as
(except in the case of a participation granted to an affiliate of a Lender, in
which case the limitation and qualification set forth in clause (a) and (b)
below shall not apply):
(a) Within five (5) Bank Business Days after granting any
participation, such Lender gives the Agent and the Borrower notice of such
participation, including the name, address and telecopier number of the
participant and the amount of the Notes and Commitments covered by the
participation; and
(b) The principal amount of the participations so granted is no less
than $5,000,000.
No holder of any such participation, other than an affiliate of such
Lender, shall be entitled to require such Lender to take or omit to take any
action hereunder, except that such Lender may agree with such participant that
such Lender will not, without such participant's consent, (i) forgive any
indebtedness of the Borrower under this Agreement or the Notes, (ii) agree to
reduce the rate of interest charged under this Agreement, or (iii) agree to
extend the final maturity of any indebtedness evidenced by the Notes, except as
expressly provided by the terms of the Loan Documents. No Lender shall, as
between the Borrower and such Lender, be relieved of any of its obligations
hereunder as a result of any such granting of a participation. The Borrower
hereby acknowledges and agrees that any participant described in this Section
will, for purposes of Section 11.3, be considered to be a Lender hereunder
(provided that such participant shall not be entitled to receive any more than
the Lender selling such participation would have received had such sale not
taken place) and may rely on, and possess all rights under, any opinions,
certificates, or other instruments or documents delivered under or in connection
with any Loan Document. Except as set forth in this Section 12.12, no Lender may
grant any participation in any Loan Document or Commitment.
Section 12.13 Disclosure of Information. The Borrower authorizes
-------------------------
each Lender and the Agent to disclose to any participant, assignee or Additional
Lender (each, a "Transferee") and any prospective Transferee any and all
financial and other information in the possession of the Agent or any Lender
concerning the Borrower which has been delivered to the Agent or such Lender by
the Borrower pursuant to this Agreement or which has been delivered to the Agent
or such Lender by the Borrower in connection with the credit evaluation of the
Borrower by the Agent or such Lender prior to entering into this Agreement;
provided, however, that prior to disclosing such information to a Transferee or
- -------- -------
prospective Transferee, the applicable Lender shall obtain from such Transferee
or prospective Transferee a confidentiality agreement agreeing that such
information shall be used only in connection with such Person's evaluation and,
if applicable, administration of its interest in this Agreement and the loans
hereunder, and shall not be disclosed to any other Person, subject to exceptions
permitting disclosure to regulators and auditors, disclosure as required by law
or judicial process, and disclosure under such other limited circumstances as
that Lender and such Transferee or prospective Transferee may reasonably agree.
ARTICLE XIII.
MISCELLANEOUS
Section 13.1 No Waiver; Cumulative Remedies. No failure or delay on
------------------------------
the part of the Lenders in exercising any right, power or remedy under the Loan
Documents shall operate as a waiver thereof; nor shall any Lender's acceptance
of payments while any Default or Event of Default is outstanding operate as a
waiver of such Default or Event of Default, or any right, power or remedy under
the Loan Documents; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy under the Loan Documents. The remedies
provided in the Loan Documents are cumulative and not exclusive of any remedies
provided by law.
Section 13.2 Amendments, Etc. No amendment, modification,
-----------------
termination or waiver of any provision of any Loan Document or consent to any
departure by the Borrower therefrom shall be effective unless the same shall be
in writing and signed by the Required Lenders (or, in the case of any action
described in Section 12.6, the number of Lenders specified for the applicable
action in such Section) and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. No notice
to or demand on the Borrower in any case shall entitle the Borrower to any other
or further notice or demand in similar or other circumstances.
Section 13.3 Notice. Except as otherwise expressly provided
------
herein, all notices and other communications hereunder shall be in writing and
shall be (i) personally delivered, (ii) transmitted by registered mail, postage
prepaid, (iii) sent by Federal Express or similar expedited delivery service, or
(iv) transmitted by telecopy (followed, in the case of any notice from the Agent
or a Lender to the Borrower, pursuant to any of Sections 11.2(a), 11.2(b) or
11.3, by a notice transmitted by registered mail, postage prepaid), in each case
addressed to the party to whom notice is being given at its address as set forth
by its signature below, or, if telecopied, transmitted to that party at its
telecopier number set forth by its signature below; or, as to each party, at
such other address or telecopier number as may hereafter be designated in a
notice by that party to the other party complying with the terms of this
Section. All such notices or other communications shall be deemed to have been
given on (i) the date received if delivered personally, by mail, or by Federal
Express or similar expedited delivery service, or (ii) the date of transmission
if delivered by telecopy, except that notices or requests to the Agent or any
Lender pursuant to any of the provisions of Article II shall not be effective
until received.
Section 13.4 Costs and Expenses. The Borrower agrees to pay on
-------------------
demand (i) all costs and expenses incurred by the Agent in connection with the
negotiation, preparation, execution, administration or amendment of the Loan
Documents and the other instruments and documents to be delivered hereunder and
thereunder, including the reasonable fees and out-of-pocket expenses of counsel
for the Agent with respect thereto, whether paid to outside counsel or allocated
by in-house counsel, and (ii) all costs and expenses incurred by the Agent or
any Lender in connection with the enforcement of the Loan Documents, including
the reasonable fees and out-of-pocket expenses of counsel for the Agent or any
Lender with respect thereto, whether paid to outside counsel or allocated by
in-house counsel.
Section 13.5 Indemnification by Borrower. The Borrower hereby
----------------------------
agrees to indemnify the Agent and the Lenders and each officer, director,
employee and agent thereof (herein individually each called an "Indemnitee" and
collectively called the "Indemnitees") from and against any and all losses,
claims, damages, reasonable expenses (including, without limitation, reasonable
attorneys' fees) and liabilities (all of the foregoing being herein called the
"Indemnified Liabilities") incurred by an Indemnitee in connection with or
arising out of the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the use of the proceeds of any Advance
(including but not limited to any such loss, claim, damage, expense or liability
arising out of any claim in which it is alleged that any "Environmental Law" has
been breached with respect to any activity or property of the Borrower), except
for any portion of such losses, claims, damages, expenses or liabilities
incurred solely as a result of the gross negligence or willful misconduct of the
applicable Indemnitee or the breach of this Agreement or any other Loan Document
by that Indemnitee. "Environmental Law" shall mean (i) any federal, state or
local law, statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, legal doctrine, order, directive, executive or
administrative order, judgment, decree, injunction, legal requirement or
agreement with any governmental entity relating to (A) the protection,
preservation or restoration of the environment (which includes, without
limitation, air, water vapor, surface water, groundwater, drinking water supply,
structures, soil, surface land, subsurface land, plant and animal life or any
other natural resource), or to human health or safety as it relates to hazardous
materials, or (B) the exposure to, or the use, storage, recycling, treatment,
generation, transportation, processing, handling, labeling, production, release
or disposal of, hazardous materials, in each case as amended and as now in
effect, including, without limitation, the Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Federal Water Pollution Control Act of 1972,
the Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource
Conservation and Recovery Act of 1976 (including, but not limited to, the
Hazardous and Solid Waste Amendments thereto and Subtitle I relating to
underground storage tanks), the Federal Solid Waste Disposal and the Federal
Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide
Act, the Federal Occupational Safety and Health Act of 1970 as it relates to
hazardous materials, the Federal Hazardous Substances Transportation Act, the
Emergency Planning and Community Right-To-Know Act, the Safe Drinking Water Act,
the Endangered Species Act, the National Environmental Policy Act, the Rivers
and Harbors Appropriation Act or any so-called "Superfund" or "Superlien" law,
each as amended and as now or hereafter in effect, and (ii) any common law or
equitable doctrine (including, without limitation, injunctive relief and tort
doctrines such as negligence, nuisance, trespass and strict liability) that
imposes liability or obligations for injuries or damages due to, or threatened
as a result of the presence of or exposure to any hazardous material. If and to
the extent that the foregoing indemnity may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. All obligations provided for in this Section shall survive any
termination of this Agreement.
Section 13.6 Execution in Counterparts. This Agreement and the
---------------------------
other Loan Documents may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts of this Agreement or such other Loan Document, as the case
may be, taken together, shall constitute but one and the same instrument.
Section 13.7 Binding Effect, Assignment. The Loan Documents shall
---------------------------
be binding upon and inure to the benefit of the Borrower and the Lenders and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights thereunder or any interest therein without the
prior written consent of each of the Lenders.
Section 13.8 Governing Law. The Loan Documents shall be governed
--------------
by, and construed in accordance with, the internal laws of the State of
Missouri.
Section 13.9 Consent to Jurisdiction/Jury Waiver. The Borrower and
-----------------------------------
the Lenders each irrevocably (i) agree that any suit, action or other legal
proceeding arising out of or relating to this Agreement or any other Loan
Document may be brought in a court of record in Hennepin County in the State of
Minnesota or in the Courts of the United States located in such State, (ii)
consent to the jurisdiction of each such court in any suit, action or
proceeding, (iii) waive any objection which they may have to the laying of venue
of any such suit, action or proceeding in any such courts and any claim that any
such suit, action or proceeding has been brought in an inconvenient forum, and
(iv) agree that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. The Borrower and Lender each waives the
right to a trial by jury in any action based on or pertaining to this Agreement.
Section 13.10 Severability of Provisions. Any provision of this
----------------------------
Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
Section 13.11 Prior Agreements. This Agreement and the other Loan
-----------------
Documents and related documents described herein restate and supersede in their
entirety any and all prior agreements and understandings, oral or written,
between any of the Lenders and the Borrower.
Section 13.12 Headings. Article and Section headings in this
--------
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
Section 13.13 No Oral Agreements. ORAL AGREEMENTS OR COMMITMENTS TO
------------------
LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS
OF LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THIS
AGREEMENT. TO PROTECT YOU (BORROWER) AND US (LENDERS AND AGENT) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
[The balance of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Address: FIRST BANKS, INC.
600 James S. McDonnell Blvd.
Mail Code M1-199-014
Hazelwood, MO 63042
Attention: Allen H. Blake By /s/ Allen H. Blake
--------------------------------
Telecopier: (314) 592-6621 Its President and
Chief Executive Officer
-------------------------------
(Signature Page to Secured Credit Agreement Page 1 of 9)
Address: WELLS FARGO BANK, NATIONAL
MAC N2650-140 ASSOCIATION, as Agent
120 S. Central Avenue, 14th Floor
St. Louis, Missouri 63105-1705
Attention: Holly Heidtbrink
Telecopier: (314)-726-3173 By /s/ Holly Heidtbrink
--------------------------------
Its Vice President
-------------------------------
(Signature Page to Secured Credit Agreement Page 2 of 9)
Address: WELLS FARGO BANK, NATIONAL
MAC N2650-140 ASSOCIATION, as a Lender
120 S. Central Avenue, 14th Floor
St. Louis, Missouri 63105-1705
Attention: Holly Heidtbrink
Telecopier: (314)-726-3173 By /s/ Holly Heidtbrink
--------------------------------
Its Vice President
-------------------------------
Commitment Amount: $32,500,000
Percentage: 26.530612%
(Signature Page to Secured Credit Agreement Page 3 of 9)
Address: JP MORGAN CHASE BANK, N.A.
WI1-2031
111 East Wisconsin Avenue
Milwaukee, WI 53201-2033
Attention: Douglas A. Gallun, Jr.
Telecopier: (312) 661-9511 By /s/ Douglas A. Gallun, Jr.
--------------------------------
Its Senior Vice President
-------------------------------
Commitment Amount: $17,500,000
Percentage: 14.285714%
(Signature Page to Secured Credit Agreement Page 4 of 9)
Address: LASALLE BANK NATIONAL
ASSOCIATION
One North Brentwood, Suite 950
Clayton, Missouri 63105
Attention: Robert J. Mathias By /s/ Robert J. Mathias
Telecopier: (314) 621-1612 --------------------------------
Its Senior Banker
-------------------------------
Commitment Amount: $17,500,000
Percentage: 14.285714%
(Signature Page to Secured Credit Agreement Page 5 of 9)
Address: THE NORTHERN TRUST COMPANY
50 South LaSalle Street, L-8
Chicago, Illinois 60675
Attention: Lisa McDermott
Telecopier: (312) 444-2336 By /s/ Lisa McDermott
--------------------------------
Its Vice President
-------------------------------
Commitment Amount: $10,000,000
Percentage: 8.163265%
(Signature Page to Secured Credit Agreement Page 6 of 9)
Address: UNION BANK OF CALIFORNIA, N.A.
445 South Figureroa Street
Los Angeles, California 90071
Attention: Dennis A. Cattell
Telecopier: (213) 236-5548 By /s/ Dennis A. Cattell
--------------------------------
Its Vice President
-------------------------------
Commitment Amount: $15,000,000
Percentage: 12.244898%
(Signature Page to Secured Credit Agreement Page 7 of 9)
Address: FIFTH THIRD BANK (CHICAGO)
1701 Gold Road
Tower One, Suite 700
Rolling Meadows, IL 60008
Attention: Patrick A. Horne
Telecopier: (847) 354-7130 By /s/ Patrick A. Horne
--------------------------------
Its Vice President
-------------------------------
Commitment Amount: $12,500,000
Percentage: 10.204082%
(Signature Page to Secured Credit Agreement Page 8 of 9)
Address: U.S. BANK NATIONAL ASSOCIATION
Correspondent Banking
SL-TW-11SI
7th & Washington
St. Louis, MO 63101
Attention: David C. Buettner, VP
Telecopier: (314) 418-8394 By /s/ David C. Buettner
--------------------------------
Its Vice President
-------------------------------
Commitment Amount: $17,500,000
Percentage: 14.285714%
(Signature Page to Secured Credit Agreement Page 9 of 9)
EXHIBIT A
BORROWER PLEDGE AGREEMENT
This Agreement is made as of the ____ day of August, 2005, by and
between FIRST BANKS, INC., a Missouri Corporation ("Debtor") and WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, as Agent for the
"Lenders" pursuant to the Secured Credit Agreement described below ("Secured
Party").
RECITALS
Debtor, Secured Party and certain financial institutions have executed
an Amended and Restated Secured Credit Agreement dated as of August 11, 2005,
(the "Credit Agreement"), pursuant to which such financial institutions (the
"Lenders") have agreed to lend up to $115,000,000 to Debtor and pursuant to
which Secured Party has agreed to issue up to $7,500,000 in face amount of
standby letters of credit for the account of Debtor.
One condition to the Lenders' and Secured Party's commitments under
the Credit Agreement is that Debtor execute, deliver and perform this Collateral
Pledge Agreement, thereby granting a security interest to Secured Party, as
agent for the Lenders, in the Collateral described herein.
Now, therefore, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
1. Security Interest and Collateral. To secure the prompt and complete
payment and performance of the "Obligations," as such term is defined in the
Credit Agreement, Debtor hereby grants Secured Party (for its own account and as
agent for the Lenders) a security interest (the "Security Interest") in (i) all
of the capital stock of The San Francisco Company, a Delaware corporation, owned
by Debtor, (ii) any capital stock that Debtor may hereafter acquire and deliver
to Secured Party pursuant to Section 8.8 of the Credit Agreement, and (iii) all
proceeds of such capital stock and all other rights in connection with such
property (collectively the "Collateral").
2. Representations, Warranties and Covenants. Debtor represents,
warrants and covenants that:
(a) Debtor will join with Secured Party in taking any action
required by Secured Party in order to perfect the Security Interest
and to protect the rights and priorities of Secured Party with respect
to the Collateral. To that end, Debtor has delivered to Secured Party
certificates representing all of the shares of capital stock
constituting Collateral and executed and delivered one blank stock
power for each such certificate. Debtor will, at Secured Party's
request at any one or more times (i) duly endorse, in blank, each and
every additional security certificate and instrument constituting
Collateral by signing on such certificate or instrument or by signing
a separate document of assignment or transfer and deliver to Secured
Party each and every such additional security certificate and
instrument; (ii) join with Secured Party in executing any instructions
or agreements with securities intermediaries for the purpose of
obtaining control of any investment property that may hereafter
constitute Collateral; and (iii) instruct the issuer of any security
that may hereafter constitute Collateral to register such security in
the name of Secured Party.
(b) Debtor is the owner of the Collateral free and clear of all
liens, encumbrances, security interests and restrictions except the
Security Interest and any restrictive legend appearing on any security
certificate or any instrument constituting Collateral.
(c) Debtor will keep the Collateral free and clear of all liens,
encumbrances and security interests, except the Security Interest.
(d) Debtor will pay, when due, all taxes and other governmental
charges levied or assessed upon or against any Collateral.
(e) Debtor will upon receipt deliver to Secured Party all
investment property distributed on account of Collateral, such as
stock dividends and securities resulting from stock splits,
reorganizations and recapitalizations. The Security Interest shall
attach to all such proceeds.
3. Events of Default. The occurrence of any Event of Default under
the Credit Agreement shall be an Event of Default hereunder.
4. Remedies Upon Event of Default. Upon the occurrence of an Event
of Default and during the continuance thereof, Secured Party may exercise any
one or more of the rights and remedies specified in the Credit Agreement, and
also any one or more of the following rights or remedies: (i) notify the obligor
on or issuer of any Collateral or any securities intermediary to make payment to
Secured Party of any amounts due or distributable on any Collateral, (ii) in
Debtor's name or Secured Party's name enforce collection of any Collateral by
suit or otherwise, or surrender, release or exchange all or any part of it, or
compromise, extend or renew for any period any obligation evidenced by the
Collateral, (iii) receive and keep in its possession or under its control
subject to the Security Interest all proceeds of Collateral, except that any
money received from the Collateral may, at Secured Party's option, be applied in
reduction of the Obligations; (iv) exercise all voting and other rights as a
holder of any Collateral; (v) exercise and enforce any or all rights and
remedies available upon default to a secured party under the Uniform Commercial
Code, including the right to (A) order any securities intermediary to sell any
Collateral on any established market or over the counter or to cause any
Collateral to be redeemed; (B) give any transfer or redemption order to any
issuer of Collateral; or (C) offer and sell Collateral privately to purchasers
who will agree to take the Collateral for investment and not with a view to
distribution and who will agree to the imposition of restrictive legends on any
certificates representing Collateral, and the right to arrange for a sale which
would otherwise qualify as exempt from registration under the Securities Act of
1933; and if notice to Debtor of any intended disposition of Collateral or any
other intended action is required by law in a particular instance, such notice
shall be deemed commercially reasonable if given at least 10 calendar days prior
to the date of intended disposition or other action; and (vi) exercise or
enforce any or all other rights or remedies available to Secured Party by law or
agreement against any Collateral, against Debtor or against any other person or
property.
5. Secured Party's Duties. Secured Party's duty of care with respect
to Collateral in its possession (as imposed by law) shall be deemed fulfilled if
Secured Party exercises reasonable care in physically safekeeping such
Collateral, or in the case of Collateral in the custody or possession of a
securities intermediary or other third person, exercises reasonable care in the
selection of the securities intermediary or other third person and Secured Party
need not otherwise preserve, protect, insure or care for any Collateral. Secured
Party shall not be obligated to preserve any rights Debtor may have against
prior parties, to exercise at all or in any particular manner any voting rights
which may be available with respect to any Collateral, to realize on the
Collateral at all or in any particular manner or order, or to apply any cash
proceeds of Collateral in any particular order of application. Regardless of the
manner in which Secured Party chooses to exercise control over Collateral
(whether by possession, by agreement with an issuer or Securities Intermediary,
by transferring security entitlements into its own account, or otherwise),
Secured Party shall not be deemed to be under any obligation to Debtor, whether
as fiduciary, trustee, agent or otherwise, except the duty of good faith, the
duties specifically imposed upon Secured Party by this Agreement, and the duties
imposed upon it as a secured party by Articles 1, 8 and 9 of the Uniform
Commercial Code, as in effect in Missouri.
6. Miscellaneous. Any disposition of Collateral in the manner
provided in Section 4 shall be deemed commercially reasonable. This Agreement
can be waived, modified, amended, terminated or discharged, and the Security
Interest can be released, only explicitly in a writing signed by Secured Party.
A waiver signed by Secured Party shall be effective only in the specific
instance and for the specific purpose given. Mere delay or failure to act shall
not preclude the exercise or enforcement of any of Secured Party's rights or
remedies. All rights and remedies of Secured Party shall be cumulative and may
be exercised singularly or concurrently, at Secured Party's option, and the
exercise or enforcement of any one such right or remedy shall neither be a
condition to nor bar the exercise or enforcement of any other. All notices to be
given to Debtor shall be deemed sufficiently given if delivered or mailed by
registered or certified mail, postage prepaid, to Debtor at the address set
forth following its signature on the signature page of this Agreement or at the
most recent address shown on Secured Party's records. Debtor will reimburse
Secured Party for all expenses (including reasonable attorneys' fees and legal
expenses) incurred by Secured Party in the protection, defense or enforcement of
the Security Interest, including expenses incurred in any litigation or
bankruptcy or insolvency proceedings. This Agreement shall be binding upon and
inure to the benefit of Debtor and Secured Party and their successors and
assigns and shall take effect when signed by Debtor and delivered to Secured
Party, and Debtor waives notice of Secured Party's acceptance hereof. This
Agreement shall be governed by the internal laws of Missouri and, unless the
context otherwise requires, all terms used herein which are defined in Articles
1, 8 and 9 of the Uniform Commercial Code, as in effect in Missouri, shall have
the meanings therein stated. If any provision or application of this Agreement
is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can be
given effect, and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby. All representations and warranties contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the Obligations.
IN WITNESS WHEREOF, Debtor has executed this Agreement as of the day
first above written.
FIRST BANKS, INC.
By
---------------------------------
Its
-------------------------------
Address:
600 James S. McDonnell Blvd.
Mail Code M1-199-014
Hazelwood, MO 63042-2302
EXHIBIT B
LOAN COMMITMENT AMOUNTS
---------------------------------------------------------------------------------------------------------------------------------
Revolving
Loan Term Loan
Name Commitment Commitment Percentage
Amount Amount Amount Notice Address
---------------------------------------------------------------------------------------------------------------------------------
Wells Fargo Bank, National $3,979,592 $26,530,612 26.530612% MAC N2650-140
Association, as a Bank 120 S. Central Avenue, 14th Floor
St. Louis, Missouri 63105-1705
Attention: Holly Heidtbrink
Telecopier:(314)-726-3173
---------------------------------------------------------------------------------------------------------------------------------
JP Morgan Chase Bank, N.A. $2,142,857 $14,285,714 14.285714% Commercial Banking
WI1-2031
111 East Wisconsin Avenue
Milwaukee, WI 53201-2033
Attention: Douglas A. Gallun, Jr.
Telecopier: (414) 977-6788
---------------------------------------------------------------------------------------------------------------------------------
LaSalle Bank National $2,142,857 $14,285,714 14.285714% One North Brentwood, Suite 950
Association Clayton, Missouri 63105
Attention: Robert J. Mathias
Telecopier: (314) 621-1612
---------------------------------------------------------------------------------------------------------------------------------
The Northern Trust Company $1,224,490 $8,163,265 8.163265% 50 South LaSalle Street, L-8
Chicago, Illinois 60675
Attention: Thomas E. Bernhardt
Telecopier: (312) 444-4906
---------------------------------------------------------------------------------------------------------------------------------
Union Bank of California, $1,836,735 $12,244,898 12.244898% 445 South Figureroa Street
N.A. Los Angeles, California 90071
Attention: Dennis A. Cattell
Telecopier: (213) 236-5548
---------------------------------------------------------------------------------------------------------------------------------
Fifth Third Bank (Chicago) $1,530,612 $10,204,082 10.204082% 1701 Golf Road
Tower One, Suite 700
Rolling Meadows, IL 60008
Attention: Patrick A. Horne
Telecopier: (847) 354-7130
---------------------------------------------------------------------------------------------------------------------------------
U.S. Bank National $2,142,857 $14,285,714 14.285714% Correspondent Banking
Association SL-TW-11SI
7th & Washington
St. Louis, MO 63101
Attention: David C. Buettner, VP
Telecopier: (314) 418-8394
---------------------------------------------------------------------------------------------------------------------------------
EXHIBIT C
COMPLIANCE CERTIFICATE
This Compliance Certificate is being submitted on this ___ day of
__________________, 200__, for the quarter ending on the ___ day of
__________________, 200__, pursuant to the terms of the Amended and Restated
Secured Credit Agreement dated as of August ___, 2005, (the "Credit Agreement"),
as the same may be thereafter amended from time to time, among Wells Fargo Bank,
National Association (the "Agent"), the Lenders that are parties thereto, and
First Banks, Inc., as Borrower. Capitalized terms used but not defined herein
shall have the meanings set forth in the Credit Agreement.
The undersigned officers of First Banks, Inc. jointly and severally
certify to the Lenders that as of the date hereof:
A. The representations and warranties contained in Article VII of
the Credit Agreement are correct as of the date hereof, except
to the extent that the same relate specifically to an earlier
date;
B. No Default or Event of Default has occurred and is continuing;
C. Attached is an accurate listing of the current Subsidiaries of
First Banks, Inc.; and
D. The computation of Margin and L/C Margin and compliance with
the covenants contained in Article X of the Credit Agreement
are supported by the following:
4.7 Funded Debt Ratio
-----------------
Revolving
(i) First Banks, Inc. (consolidated) (2) Ratio of Loan L/C Term Loan
Net Income for the quarter ended: Funded Debt (2) to (1) Margin Margin Margin
- --------------------------------- ----------- ---------- ------ ------ ------
$
- ------------- ---------------
- ------------- ---------------
- ------------- ---------------
- ------------- ---------------
Total Net Income $ (1) % bp bp bp
--------------- ----------- -------- ------ ------ ------
10.1 Total Risk Based Capital Ratio
(2)
Weighted-Risk
Assets and Off- Minimum
(1) Balance Sheet Ratio of Ratio
Total Capital Items (1) to (2) Permitted
------------- ----- ---------- ---------
First Banks, Inc. (consolidated) % 10.0%
----------- ----------- ---------- -----
First Bank % 10.0%
----------- ----------- ---------- -----
10.2 Tier I Risk Based Capital Ratio
-------------------------------
(2)
Weighted-Risk
Assets and Off- Minimum
(1) Balance Sheet Ratio of Ratio
Tier I Capital Items (1) to (2) Permitted
-------------- ----- ---------- ---------
First Banks, Inc. (consolidated) % 6.0%
------------ ----------- ---------- ----
First Bank % 6.0%
------------ ----------- ---------- ----
10.3 Leverage Ratio
--------------
(1) (2)
Tier I Capital Average Total Ratio of Minimum
-------------- ------------- (1) to (2) Ratio
Assets ---------- Permitted
------ ---------
First Banks, Inc. (consolidated) % 5.0%
------------ ----------- ---------- ----
First Bank % 5.0%
------------ ----------- ---------- ----
10.4 Minimum Return on Assets
------------------------
Minimum
Net Income for the quarter ended: Average Total Ratio of Ratio
- --------------------------------- Assets (2) (1) to (2) Permitted
----------- ---------- ---------
First Banks, Inc. (consolidated)
$
- ---------------- -------------
- ---------------- -------------
- ---------------- -------------
- ---------------- -------------
Total Net Income $ (1) % 0.70%
------------- ---------- ---------- -----
10.5 Non-Performing Assets
---------------------
(1) (2) Maximum
Non-Performing Primary Equity Ratio of Ratio
Assets Capital (1) to (2) Permitted
------ ------- ---------- ---------
First Banks, Inc. (consolidated) % 20%
------------ ------- ---------- ---
10.6 Allowance for Loan and Lease Losses
-----------------------------------
(1) (2) Minimum
Allowance for Non-Performing Ratio of Ratio
Loan and Assets (1) to (2) Permitted
Lease Losses ------ ---------- ---------
First Banks, Inc. (consolidated) % 100%
---------- -------- ---------- ----
Signed as of the day and year first above written.
FIRST BANKS, INC.
By:
---------------------------------------------------------
Chief Executive Officer and Chief Financial Officer
By:
---------------------------------------------------------
Senior Vice President - Chief Accounting Officer
By:
---------------------------------------------------------
Chief Operating Officer
By:
---------------------------------------------------------
Chief Credit Officer
EXHIBIT D1
APPLICATION FOR STANDBY LETTER OF CREDIT
TO: WELLS FARGO BANK, NATIONAL ASSOCIATION
- ------------------------------------------------------------------------------------------------------------------
------------------- --------------------------------------------------------------------------------
FOR WELLS FARGO'S
DATE USE ONLY LETTER OF CREDIT NO. DOCUMENT TRACK NO.
------------------- --------------------------------------------------------------------------------
APPLICANT SIGNING BELOW HEREBY REQUESTS THAT WELLS FARGO BANK, NATIONAL ASSOCIATION ("WELLS FARGO") ISSUE IN WELLS
FARGO'S NAME AN IRREVOCABLE STANDBY LETTER OF CREDIT (THE "CREDIT") ON SUBSTANTIALLY THE TERMS BELOW AND, UNLESS
OTHERWISE SPECIFIED BELOW IN SPECIAL INSTRUCTIONS, FORWARD THE CREDIT BY THE FOLLOWING MEANS TO THE BENEFICIARY
DIRECTLY OR THROUGH A BANK SELECTED BY WELLS FARGO:
( ) FULL CABLE/TELEX ( ) COURIER ( ) MAIL WITH BRIEF ADVICE BY CABLE/TELEX ( ) MAIL ( ) OTHER:
-------------------
- ------------------------------------------------------------------------------------------------------------------
ADVISING BANK: (If left blank, Wells Fargo may select) BENEFICIARY: (Name and Address)
- ------------------------------------------------------------------------------------------------------------------
PARTY TO BE NAMED AS REQUESTING THE CREDIT: (Name AMOUNT: (In words)
and Address)
----------------------------- ----------------------
(In figures) (Currency)
- ------------------------------------------------------------------------------------------- ----------------------
AVAILABILITY: Unless otherwise specified herein, the Credit is to EXPIRATION DATE:
be available with Wells Fargo's issuing office by payment of draft(s) -------------------------
drawn at sight on Wells Fargo or, at Wells Fargo's option, with any PLACE OF EXPIRATION: Unless otherwise
option, with any bank(s) or with a bank nominated by Wells Fargo by specified herein, the Credit is to
negotiation of draft(s) drawn at sight on Wells Fargo. expire at Wells Fargo's issuing office
or, if the Credit is available with
any bank(s) or with a specific bank
other than Wells Fargo's issuing office,
at such place as Wells Fargo shall elect.
- ------------------------------------------------------------------------------------------------------------------
DOCUMENT(S): Draft(s) are to be accompanied by: (Attached additional signed sheet(s), if necessary, and label as
attachments to this Application.)
- ------------------------------------------------------------------------------------------------------------------
DRAWING(S): ( ) Partial drawings are permitted. (More than one draft may be drawn and presented under the
Credit.)
( ) Only one draft may be drawn and presented under the Credit, and:
( ) the draft must be for the full amount of the Credit. ( ) the draft may be for less
than the full amount of the
Credit.
- ------------------------------------------------------------------------------------------------------------------
SPECIAL INSTRUCTIONS: (Attach additional signed sheet(s), if necessary, and label as attachments to this
Application.)
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
TRANSFERABILITY: (If not checked, the Credit will not be transferable.)
( ) The Credit is to be transferable, with transfer charges for: ( ) Applicant's account ( ) Beneficiary's
account
- ------------------------------------------------------------------------------------------------------------------
INQUIRIES: Direct to: Telephone Number:
- ------------------------------------------------------------------------------------------------------------------
APPLICANT'S AGREEMENT AND SIGNATURE: Applicant's signature here indicates agreement to all the terms and
conditions on this Application and Applicant's agreement that the Credit and its issuance will be governed by (1)
the terms and conditions of the Standby Letter of Credit Agreement between Applicant and Wells Fargo and/or (2)
any other agreement signed by Applicant pursuant to which the Credit is to be issued. This Application is signed
by Applicant's duly authorized representative(s) on the date specified above.
- -------------------------------------------------------------------------------- -------------------------------
APPLICANT ADDRESS
- ------------------------------------------------ ----------------------------- -------------------------------
AUTHORIZED SIGNATURE TITLE ADDRESS
- ------------------------------------------------ ----------------------------- -------------------------------
AUTHORIZED SIGNATURE TITLE ADDRESS
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
(TO BE COMPLETED BY WELLS FARGO BANK, NATIONAL ASSOCIATION)
CREDIT ISSUANCE HAS BEEN APPROVED IN ACCORDANCE WITH WELLS FARGO'S CREDIT POLICIES AND PROCEDURES
- -----------------------------------------------------------------------------------------------------------------
APPROVING OFFICER'S SIGNATURE APPROVING OFFICER'S NAME (Print) APPROVING OFFICER'S OFFICE AU MAC COMMITMENT NO.
(Print)
- ------------------------------------------------------------------------------------------------------------------
PHONE AFS INTERFACE REQUIRED: STANDALONE COLLATERAL PURPOSE DATE
TRANSACTION: CODE CODE
YES ( ) NO ( ) YES ( ) NO ( )
- ------------------------------------------------------------------------------------------------------------------
SPECIAL INSTRUCTIONS: (Indicate any provisions applicable to the Credit different from those on Applicant's
Relationship Management Instructions Form)
- ------------------------------------------------------------------------------------------------------------------
EXHIBIT D2
STANDBY LETTER OF CREDIT AGREEMENT
To: WELLS FARGO BANK, NATIONAL ASSOCIATION
Applicant hereby requests that you, Wells Fargo Bank, National
Association ("Wells Fargo"), issue in your name one or more standby letters of
credit pursuant to Applications for the issuance of such Credits and the terms
and conditions of this Agreement. Each Credit will be issued at Applicant's
request and for its account, and, unless otherwise specifically provided in any
Loan Document, at your option. Applicant agrees that the terms and conditions in
this Agreement shall apply to each Application and the Credit issued pursuant to
each Application, and to transactions under each Application, each Credit and
this Agreement.
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth after each term: "Agreement" means this
---------
Standby Letter of Credit Agreement as it may be revised or amended from time to
time. "Applicant" means collectively each person and/or entity signing this
---------
Agreement as Applicant. "Application" means your printed form titled
-----------
"Application For Standby Letter of Credit" or any other form acceptable to you
on which Applicant applies for the issuance by you of a Credit and/or an
application for amendment of a Credit or any combination of such applications,
as the context may require. "Beneficiary" means the person or entity named on an
-----------
Application as the beneficiary or any transferee of such beneficiary.
"Collateral" means the Property, together with the proceeds of such Property,
----------
securing any or all of Applicant's obligations and liabilities at any time
existing under or in connection with any L/C Document and/or any Loan Document.
"Commission Fee" means the fee, computed at the commission fee rate specified by
--------------
you or specified in any Loan Document, charged by you at the time or times
specified by you on the amount of each Credit and on the amount of each increase
in a Credit for the time period each Credit is outstanding. "Credit" means an
------
instrument or document titled "Irrevocable Standby Letter of Credit" or "Standby
Letter of Credit", or any instrument or document whatever it is titled or
whether or not it is titled functioning as a standby letter of credit, issued
under or pursuant to an Application, and all renewals, extensions and amendments
of such instrument or document. "Demand" means any sight draft, electronic or
------
telegraphic transmission or other written demand drawn or made, or purported to
be drawn or made, under or in connection with any Credit. "Document" means any
--------
instrument, statement, certificate or other document referred to in or related
to any Credit or required by any Credit to be presented with any Demand.
"Dollars" means the lawful currency at any time for the payment of public or
-------
private debts in the United States of America. "Event of Default" means any of
----------------
the events set forth in Section 13 of this Agreement. "Expiration Date" means
----------------
the date any Credit expires. "Guarantor" means any person or entity guaranteeing
---------
the payment and/or performance of any or all of Applicant's obligations under or
in connection with any L/C Document and/or any Loan Document. "Holding Company"
---------------
means any company or other entity directly or indirectly controlling you. "L/C
---
Document" means this Agreement, each Application, each Credit, and each Demand.
- --------
"Loan Document" means each and any promissory note, loan agreement, security
--------------
agreement, pledge agreement, guarantee or other agreement or document executed
in connection with, or relating to, any extension of credit under which any
Credit is issued. "Maximum Rate" means the maximum amount of interest (as
-------------
defined by applicable laws), if any, permitted to be paid, taken, reserved,
received, collected or charged under applicable laws, as the same may be amended
or modified from time to time. "Negotiation Fee" means the fee, computed at the
---------------
negotiation fee rate specified by you or specified in any Loan Document, charged
by you on the amount of each Demand paid by you or any other bank specified by
you when each Demand is paid. "Payment Office" means the office specified by you
--------------
or specified in any Loan Document as the office where reimbursements and other
payments under or in connection with any L/C Document are to be made by
Applicant. "Prime Rate" means the rate of interest most recently announced
-----------
within Wells Fargo at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of Wells Fargo's base rates and serves
as the basis upon which effective rates of interest are calculated for those
loans making reference thereto, and is evidenced by the recording thereof after
its announcement in such internal publication or publications as Wells Fargo may
designate. "Property" means all forms of property, whether tangible or
--------
intangible, real, personal or mixed. "Rate of Exchange" means Wells Fargo's then
----------------
current selling rate of exchange in San Francisco, California for sales of the
currency of payment of any Demand, or of any fees or expenses or other amounts
payable under this Agreement, for cable transfer to the country of which such
currency is the legal tender. "UCP" means the Uniform Customs and Practice for
---
Documentary Credits, an International Chamber of Commerce publication, or any
substitution therefor or replacement thereof. "Unpaid and Undrawn Balance" means
--------------------------
at any time the entire amount which has not been paid by you under all the
Credits issued for Applicant's account, including, without limitation, the
amount of each Demand on which you have not yet effected payment as well as the
amount undrawn under all such Credits. "Wells Fargo & Company" means Wells Fargo
---------------------
& Company, a Delaware corporation.
SECTION 2. HONORING DEMANDS AND DOCUMENTS. You may receive, accept and
honor, as complying with the terms of any Credit, any Demand and any Documents
accompanying such Demand, provided that such Demand and accompanying Documents
appear on their face to comply substantially with the provisions of such Credit
and are, or appear on their face to be, signed or issued by (a) a person or
entity authorized under such Credit to draw, sign or issue such Demand and
accompanying Documents, or (b) an administrator, executor, trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
liquidator, receiver or other legal representative or successor in interest by
operation of law of any such person or entity.
SECTION 3. REIMBURSEMENT FOR PAYMENT OF DEMANDS. Applicant shall
reimburse you for all amounts paid by you on each Demand, including, without
limitation, all such amounts paid by you to any paying, negotiating or other
bank. If in connection with the issuance of any Credit, you agree to pay any
other bank the amount of any payment or negotiation made by such other bank
under such Credit upon your receipt of a cable, telex or other written
telecommunication advising you of such payment or negotiation, or authorize any
other bank to debit your account for the amount of such payment or negotiation,
Applicant agrees to reimburse you for all such amounts paid by you, or debited
to your account with such other bank, even if any Demand or Document specified
in such Credit fails to arrive in whole or in part or if, upon the arrival of
any such Demand or Document, the terms of such Credit have not been complied
with or such Demand or Document does not conform to the requirements of such
Credit or is not otherwise in order.
SECTION 4. FEES AND EXPENSES. Applicant agrees to pay to you (a) all
Commission Fees, Negotiation Fees, cable fees, amendment fees, non-usance fees,
and cancellation fees of, and all out-of-pocket expenses incurred by, you under
or in connection with any L/C Document, and (b) all fees and charges of banks or
other entities other than you under or in connection with any L/C Document if
any Application (i) does not indicate who will pay such fees and charges, (ii)
indicates that such fees and charges are to be paid by Applicant, or (iii)
indicates that such fees and charges are to be paid by the Beneficiary and the
Beneficiary does not, for any reason whatsoever, pay such fees or charges. There
shall be no refund of any portion of any Commission Fee in the event any Credit
is used, reduced, amended, modified or terminated before its Expiration Date.
SECTION 5. DEFAULT INTEREST. Unless otherwise specified in any Loan
Document, or on an Application and agreed to by you, all amounts to be
reimbursed by Applicant to you, and all fees and expenses to be paid by
Applicant to you, and all other amounts due from Applicant to you under or in
connection with any L/C Documents, will bear interest (to the extent permitted
by law), payable on demand, from the date you paid the amounts to be reimbursed
or the date such fees, expenses and other amounts were due until such amounts
are paid in full, at a rate per annum (computed on the basis of a 360-day year,
actual days elapsed) which is the lesser of (a) two percent (2%) above the Prime
Rate in effect from time to time, or (b) the Maximum Rate.
SECTION 6. TIME AND METHOD OF REIMBURSEMENT AND PAYMENT. Unless
otherwise specified in this Section, in any Loan Document, or on an Application
and agreed to by you, all amounts to be reimbursed by Applicant to you, all fees
and expenses to be paid by Applicant to you, and all interest and other amounts
due to you from Applicant under or in connection with any L/C Documents will be
reimbursed or paid at the Payment Office in Dollars in immediately available
funds without setoff or counterclaim (i) on demand or, (ii) at your option by
your debiting any of Applicant's accounts with you, with each such debit being
made without presentment, protest, demand for reimbursement or payment, notice
of dishonor or any other notice whatsoever, all of which are hereby expressly
waived by Applicant. Each such debit will be made at the time each Demand is
paid by you or, if earlier, at the time each amount is paid by you to any
paying, negotiating or other bank, or at the time each fee and expense is to be
paid or any interest or other amount is due under or in connection with any L/C
Documents. If any Demand or any fee, expense, interest or other amount payable
under or in connection with any L/C Documents is payable in a currency other
than Dollars, Applicant agrees to reimburse you for all amounts paid by you on
such Demand, and/or to pay you all such fees, expenses, interest and other
amounts, in one of the three following ways, as determined by you in your sole
discretion in each case: (a) at such place as you shall direct, in such other
currency; or (b) at the Payment Office in the Dollar equivalent of the amount of
such other currency calculated at the Rate of Exchange on the date determined by
you in your sole discretion; or (c) at the Payment Office in the Dollar
equivalent, as determined by you (which determination shall be deemed correct
absent manifest error), of such fees, expenses, interest or other amounts or of
the actual cost to you of paying such Demand. Applicant assumes all political,
economic and other risks of disruptions or interruptions in any currency
exchange.
SECTION 7. AGREEMENTS OF APPLICANT. Applicant agrees that (a) unless
otherwise specifically provided in any Loan Document, you shall not be obligated
at any time to issue any Credit for Applicant's account; (b) unless otherwise
specifically provided in any Loan Document, if any Credit is issued by you for
Applicant's account, you shall not be obligated to issue any further Credit for
Applicant's account or to make other extensions of credit to Applicant or in any
other manner to extend any financial consideration to Applicant; (c) you have
not given Applicant any legal or other advice with regard to any L/C Document or
Loan Document; (d) if you at any time discuss with Applicant the wording for any
Credit, any such discussion will not constitute legal or other advice by you or
any representation or warranty by you that any wording or Credit will satisfy
Applicant's needs; (e) Applicant is responsible for the wording of each Credit,
including, without limitation, any drawing conditions, and will not rely on you
in any way in connection with the wording of any Credit or the structuring of
any transaction related to any Credit; (f) Applicant, and not you, is
responsible for entering into the contracts relating to the Credits between
Applicant and the Beneficiaries and for causing Credits to be issued; (g) you
may, as you deem appropriate, modify or alter and use in any Credit the
terminology contained on the Application for such Credit; (h) unless the
Application for a Credit specifies whether the Documents to be presented with a
Demand under such Credit must be sent to you in one parcel or in two parcels or
may be sent to you in any number of parcels, you may, if you so desire, make
such determination and specify in the Credit whether such Documents must be sent
in one parcel or two parcels or may be sent in any number of parcels; (i) you
shall not be deemed Applicant's agent or the agent of any Beneficiary or any
other user of any Credit, and neither Applicant, nor any Beneficiary nor any
other user of any Credit shall be deemed your agent; (j) Applicant will promptly
examine all Documents and each Credit if and when they are delivered to
Applicant and, in the event of any claim of noncompliance of any Documents or
any Credit with Applicant's instructions or any Application, or in the event of
any other irregularity, Applicant will promptly notify you in writing of such
noncompliance or irregularity; (k) all directions and correspondence relating to
any L/C Document are to be sent at Applicant's risk; (l) if any Credit has a
provision concerning the automatic extension of its Expiration Date, you may, at
your sole option, give notice of nonrenewal of such Credit and if Applicant does
not at any time want such Credit to be renewed Applicant will so notify you at
least fifteen (15) calendar days before you are to notify the Beneficiary of
such Credit or any advising bank of such nonrenewal pursuant to the terms of
such Credit; (m) Applicant will not seek to obtain, apply for, or acquiesce in
any temporary or permanent restraining order, preliminary or permanent
injunction, permanent injunction or any other pretrial or permanent injunctive
or similar relief, restraining, prohibiting or enjoining you, any of your
correspondents or any advising, confirming, negotiating, paying or other bank
from paying or negotiating any Demand or honoring any other obligation under or
in connection with any Credit; and (n) except for Applicant's obligations
specifically affected by the actions referred to in subsection (vi) of this
Section 7(n), Applicant's obligations under or in connection with each L/C
Document and Loan Document shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of each such L/C
Document and Loan Document under all circumstances whatsoever, including,
without limitation, the following circumstances, the circumstances listed in
Section 12(b) through (dd) of this Agreement, and any other event or
circumstance similar to such circumstances: (A) any lack of validity or
enforceability of any L/C Document, any Loan Document, any Document or any
agreement relating to any of the foregoing; (B) any amendment of or waiver
relating to, or any consent to or departure from, any L/C Document, any Loan
Document or any Document; (C) any release or substitution at any time of any
Property held as Collateral; (D) your failure to deliver to Applicant any
Document you have received with a drawing under a Credit because doing so would,
or is likely to, violate any law, rule or regulation of any government
authority; (E) the existence of any claim, set-off, defense or other right which
Applicant may have at any time against you or any Beneficiary (or any person or
entity for whom any Beneficiary may be acting) or any other person or entity,
whether under or in connection with any L/C Document, any Loan Document, any
Document or any Property referred to in or related to any of the foregoing or
under or in connection with any unrelated transaction; (F) any breach of
contract or other dispute between or among any two or more of you, Applicant,
any Beneficiary, any transferee of any Beneficiary, any person or entity for
whom any Beneficiary or any transferee of any Beneficiary may be acting, or any
other person or entity; or (G) any delay, extension of time, renewal, compromise
or other indulgence granted or agreed to by you with or without notice to
Applicant, or Applicant's approval, in respect of any of Applicant's
indebtedness or other obligations to you under or in connection with any L/C
Document or any Loan Document.
SECTION 8. COMPLIANCE WITH LAWS AND REGULATIONS. Applicant represents
and warrants to you that no Application, Credit or transaction under any
Application and/or Credit will contravene any law or regulation of the
government of the United States or any state thereof. Applicant agrees (a) to
comply with all federal, state and foreign exchange regulations and other
government laws and regulations now or hereafter applicable to any L/C Document,
to any payments under or in connection with any L/C Document, to each
transaction under or in connection with any L/C Document, or to the import,
export, shipping or financing of the Property referred to in or shipped under or
in connection with any Credit, and (b) to reimburse you for such amounts as you
may be required to expend as a result of such laws or regulations, or any change
therein or in the interpretation thereof by any court or administrative or
government authority charged with the administration of such laws or
regulations.
SECTION 9. TAXES, RESERVES AND CAPITAL ADEQUACY REQUIREMENTS. In
addition to, and notwithstanding any other provision of any L/C Document or any
Loan Document, in the event that any law, treaty, rule, regulation, guideline,
request, order, directive or determination (whether or not having the force of
law) of or from any government authority, including, without limitation, any
court, central bank or government regulatory authority, or any change therein or
in the interpretation or application thereof, (a) does or shall subject you to
any tax of any kind whatsoever with respect to the L/C Documents, or change the
basis of taxation of payments to you of any amount payable thereunder (except
for changes in the rate of tax on your net income); (b) does or shall impose,
modify or hold applicable any reserve, special deposit, assessment, compulsory
loan, Federal Deposit Insurance Corporation insurance or similar requirement
against assets held by, deposits or other liabilities in or for the account of,
advances or loans by, other credit extended by or any other acquisition of funds
by, any of your offices; (c) does or shall impose, modify or hold applicable any
capital adequacy requirements (whether or not having the force of law); or (d)
does or shall impose on you any other condition; and the result of any of the
foregoing is (i) to increase the cost to you of issuing or maintaining any
Credit or of performing any transaction under any L/C Document, (ii) to reduce
any amount receivable by you under any L/C Document, or (iii) to reduce the rate
of return on your capital or the capital of the Holding Company to a level below
that which you or the Holding Company could have achieved but for any
imposition, modification or application of any capital adequacy requirement
(taking into consideration your policy and the policy of the Holding Company, as
the case may be, with respect to capital adequacy), and any such increase or
reduction is material (as determined by you or the Holding Company, as the case
may be, in your or the Holding Company's sole discretion); then, in any such
case, Applicant agrees to pay to you or the Holding Company, as the case may be,
such amount or amounts as may be necessary to compensate you or the Holding
Company for (A) any such additional cost, (B) any reduction in the amount
received by you under any L/C Document, or (C) to the extent allocable (as
determined by you or the Holding Company, as the case may be, in your or the
Holding Company's sole discretion) to any L/C Document, any reduction in the
rate of return on your capital or the capital of the Holding Company.
SECTION 10. COLLATERAL. In addition to, and not in substitution for,
any Property delivered, conveyed, transferred or assigned to you under any Loan
Document as security for any or all of Applicant's obligations and liabilities
to you at any time existing under or in connection with any L/C Document or any
Loan Document, Applicant grants to you a security interest in and to the
following Collateral, whether or not any such Collateral is in your possession
or control or the possession or control of your agents or correspondents or in
transit to, or set apart for, you or your agents or correspondents, until such
time as all Applicant's obligations and liabilities to you at any time existing
under or in connection with each L/C Document and each Loan Document have been
fully paid and discharged, all as security for such obligations and liabilities,
(a) all Applicant's property, claims, demands, right, title and interest in and
to the balance of each of Applicant's deposit accounts with you now or at any
time hereafter existing, and all evidences of such deposit accounts, (b) all
Property belonging to Applicant or in which it may have an interest, now or at
any time hereafter delivered, conveyed, transferred, assigned, pledged or paid
to you or your agents or correspondents in any manner whatsoever, whether as
security or for safekeeping or otherwise, including, without limitation, any
items received for collection or transmission, and the proceeds of such items,
whether or not such Property is in whole or in part released to Applicant on
trust or bailee receipt or otherwise, and (c) where Applicant is more than one
person or entity, all right, title and interest of each of Applicants in and to
all the Property which any of Applicants may now or hereafter obtain as security
for the obligations of any one or more of Applicants to one or more of the
others of Applicants arising under or in connection with the transaction to
which any Credit relates. Further, in addition to, and not in substitution for,
any Property delivered, conveyed, transferred or assigned to you under any Loan
Document as security for any or all of Applicant's obligations and liabilities
to you at any time existing under or in connection with any L/C Document or any
Loan Document, Applicant agrees to deliver, convey, transfer and assign to you
on demand, as security, Property of a value and character satisfactory to you,
(i) if you at any time feel insecure about Applicant's ability or willingness to
repay any amounts which you have paid or may pay in the future on any Demand or
in honoring any other of your obligations under or in connection with any
Credit, or (ii) without limiting the generality of the foregoing, if any
temporary or permanent restraining order, preliminary or permanent injunction,
or any other pretrial or permanent injunctive or similar relief is obtained
restraining, prohibiting or enjoining you, any of your correspondents, or any
advising, confirming, negotiating, paying or other bank from paying or
negotiating any Demand or honoring any other obligation under or in connection
with any Credit. Applicant agrees that the receipt by you or any of your agents
or correspondents at any time of any kind of security, including, without
limitation, cash, shall not be deemed a waiver of any of your rights or powers
under this Agreement. Applicant agrees to sign and deliver to you on demand, all
such deeds of trust, security agreements, financing statements and other
documents as you shall at any time request which are necessary or desirable (in
your sole opinion) to grant to you an effective and perfected security interest
in and to any or all of the Collateral. Applicant agrees to pay all filing and
recording fees related to the perfection of any security interest granted to you
in accordance with this Section. Applicant hereby agrees that any or all of the
Collateral may be held and disposed of as provided in this Agreement by you.
Upon any transfer, sale, delivery, surrender or endorsement of any Document or
Property which is or was part of the Collateral, Applicant will indemnify and
hold you and your agents and correspondents harmless from and against each and
every claim, demand, action or suit which may arise against you or any of your
agents or correspondents by reason of such transfer, sale, delivery, surrender
or endorsement.
SECTION 11. INDEMNIFICATION. Except to the extent caused by your lack
of good faith, and notwithstanding any other provision of this Agreement,
Applicant agrees to reimburse and indemnify you for (a) all amounts paid by you
to any Beneficiary under or in connection with any guarantee or similar
undertaking issued by such Beneficiary to a third party at Applicant's request,
whether such request is communicated directly by Applicant or through you to
such Beneficiary; and (b) all damages, losses, liabilities, actions, claims,
suits, penalties, judgments, obligations, costs or expenses, of any kind
whatsoever and howsoever caused, including, without limitation, attorneys' fees
and interest, paid, suffered or incurred by, or imposed upon, you directly or
indirectly arising out of or in connection with (i) any L/C Document, any Loan
Document, any Document or any Property referred to in or related to any Credit;
(ii) Applicant's failure to comply with any of its obligations under this
Agreement; (iii) the issuance of any Credit; (iv) the transfer of any Credit;
(v) any guarantee or similar undertaking, or any transactions thereunder, issued
by any Beneficiary to a third party at Applicant's request, whether such request
is communicated directly by Applicant or through you to such Beneficiary; (vi)
any communication made by you, on Applicant's instructions, to any Beneficiary
requesting that such Beneficiary issue a guarantee or similar undertaking to a
third party or the issuance of any such guarantee or similar undertaking; (vii)
the collection of any amounts Applicant owes to you under or in connection with
any L/C Document or any Loan Document; (viii) the foreclosure against, or other
enforcement of, any Collateral; (ix) the protection, exercise or enforcement of
your rights and remedies under or in connection with any L/C Document or any
Loan Document; (x) any court decrees or orders, including, without limitation,
temporary or permanent restraining orders, preliminary or permanent injunctions,
or any other pretrial or permanent injunctive or similar relief, restraining,
prohibiting or enjoining or seeking to restrain, prohibit or enjoin you, any of
your correspondents or any advising, confirming, negotiating, paying or other
bank from paying or negotiating any Demand or honoring any other obligation
under or in connection with any Credit; or (xi) any Credit being governed by
laws or rules other than the UCP in effect on the date such Credit is issued.
The indemnity provided in this Section will survive the termination of this
Agreement and the expiration or cancellation of any or all the Credits.
SECTION 12. LIMITATION OF LIABILITY. Notwithstanding any other
provision of this Agreement, neither you nor any of your agents or
correspondents will have any liability to Applicant for any action, neglect or
omission, if done in good faith, under or in connection with any L/C Document,
Loan Document or Credit, including, without limitation, the issuance or any
amendment of any Credit, the failure to issue or amend any Credit, or the
honoring or dishonoring of any Demand under any Credit, and such good faith
action, neglect or omission will bind Applicant. Notwithstanding any other
provision of any L/C Document, in no event shall you or your officers or
directors be liable or responsible, regardless of whether any claim is based on
contract or tort, for (a) any special, consequential, indirect or incidental
damages, including, without limitation, lost profits, arising out of or in
connection with the issuance of any Credit or any action taken or not taken by
you in connection with any L/C Document, any Loan Document, or any Document or
Property referred to in or related to any Credit; (b) the honoring of any Demand
in accordance with any order or directive of any court or government or
regulatory body or entity requiring such honor despite any temporary restraining
order, restraining order, preliminary injunction, permanent injunction or any
type of pretrial or permanent injunctive relief or any similar relief, however
named, restraining, prohibiting or enjoining such honor; (c) the dishonoring of
any Demand in accordance with any legal or other restriction in force at the
time and in the place of presentment or payment; (d) verifying the existence or
reasonableness of any act or condition referenced, or any statement made, in
connection with any drawing or presentment under any Credit; (e) the use which
may be made of any Credit; (f) the validity of any purported transfer of any
Credit or the identity of any purported transferee of any Beneficiary; (g) any
acts or omissions of any Beneficiary or any other user of any Credit; (h) the
form, validity, sufficiency, correctness, genuineness or legal effect of any
Demand or any Document, or of any signatures or endorsements on any Demand or
Document, even if any Demand or any Document should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (i) payment by you
of any Demand when the Demand and any accompanying Documents appear on their
face to comply substantially with the terms of the Credit to which they relate
or dishonor by you of any Demand when the Demand and any accompanying Documents
do not strictly comply on their face with the terms of the Credit to which they
relate; (j) the failure of any Demand or Document to bear any reference or
adequate reference to the Credit to which it relates; (k) the failure of any
Document to accompany any Demand; (l) the failure of any person or entity to
note the amount of any Demand on the Credit to which it relates or on any
Document; (m) the failure of any person or entity to surrender or take up any
Credit; (n) the failure of any Beneficiary to comply with the terms of any
Credit or to meet the obligations of such Beneficiary to Applicant; (o) the
failure of any person or entity to send or forward Documents if and as required
by the terms of any Credit; (p) any errors, inaccuracies, omissions,
interruptions or delays in transmission or delivery of any messages, directions
or correspondence by mail, cable, telegraph, wireless or otherwise, whether or
not they are in cipher; (q) any notice of nonrenewal of a Credit sent by you not
being received on time or at any time by the Beneficiary of such Credit; (r) any
inaccuracies in the translation of any messages, directions or correspondence;
(s) any Beneficiary's use of the proceeds of any Demand; (t) any Beneficiary's
failure to repay to you or Applicant the proceeds of any Demand if the terms of
any Credit require such repayment; or (u) any act, error, neglect, default,
negligence, gross negligence, omission, willful misconduct, lack of good faith,
insolvency or failure in business of any of your agents or correspondents or of
any advising, confirming, negotiating, paying or other bank. The occurrence of
any one or more of the contingencies referred to in the preceding sentence shall
not affect, impair or prevent the vesting of your rights or powers under this
Agreement or any Loan Document or Applicant's obligation to make reimbursement
or payment to you under this Agreement or any Loan Document. The provisions of
this Section will survive the termination of this Agreement and any Loan
Documents and the expiration or cancellation of any or all the Credits.
SECTION 13. EVENTS OF DEFAULT. Each of the following shall constitute
an Event of Default under this Agreement: (a) Applicant's or any Guarantor's
failure to pay any principal, interest, fee or other amount when due under or in
connection with any L/C Document or any Loan Document; (b) Applicant's failure
to deliver to you Property of a value and character satisfactory to you at any
time you have demanded security from Applicant pursuant to Section 10 of this
Agreement; (c) the occurrence and continuance of any default or defined event of
default under any Loan Document or any other agreement, document or instrument
signed or made by Applicant or any Guarantor in your favor; (d) Applicant's or
any Guarantor's failure to perform or observe any term, covenant or agreement
contained in this Agreement or any Loan Document (other than those referred to
in subsections (a), (b) and (c) of this Section, or the breach of any other
obligation owed by Applicant or any Guarantor to you, and any such failure or
breach shall be impossible to remedy or shall remain unremedied for thirty (30)
calendar days after such failure or breach occurs; (e) any representation,
warranty or certification made or furnished by Applicant or any Guarantor under
or in connection with any L/C Document, any Loan Document or any Collateral, or
as an inducement to you to enter into any L/C Document or Loan Document or to
accept any Collateral, shall be materially false, incorrect or incomplete when
made; (f) any material provision of this Agreement or any Loan Document shall at
any time for any reason cease to be valid and binding on Applicant or any
Guarantor or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested by Applicant, any Guarantor or any
government agency or authority, or Applicant or any Guarantor shall deny that it
has any or further liability or obligation under this Agreement or any Loan
Document; (g) Applicant's or any Guarantor's failure to pay or perform when due
any indebtedness or other obligation Applicant or such Guarantor has to any
person or entity other than you if such failure gives the payee of such
indebtedness or the beneficiary of the performance of such obligation the right
to accelerate the time of payment of such indebtedness or the performance of
such obligation; (h) any guarantee of, or any security covering, any of
Applicant's indebtedness to you arising under or in connection with any L/C
Document or any Loan Document fails to be in full force and effect at any time;
(i) any material adverse change in Applicant's or any Guarantor's financial
condition; (j) Applicant or any Guarantor suspends the transaction of its usual
business or is expelled or suspended from any exchange; (k) Applicant or any
Guarantor dies or is incapacitated; (l) Applicant or any Guarantor dissolves or
liquidates; (m) Applicant or any Guarantor is not generally paying its debts as
they become due; (n) Applicant or any Guarantor becomes insolvent, however such
insolvency may be evidenced, or Applicant or any Guarantor makes any general
assignment for the benefit of creditors; (o) a petition is filed by or against
Applicant or any Guarantor seeking Applicant's or such Guarantor's liquidation
or reorganization under the Bankruptcy Reform Act, Title 11 of the United States
Code, as amended or recodified from time to time, or a similar action is brought
by or against Applicant or any Guarantor under any federal, state or foreign
law; (p) a proceeding is instituted by or against Applicant or any Guarantor for
any relief under any bankruptcy, insolvency or other law relating to the relief
of debtors, reorganization, readjustment or extension of indebtedness or
composition with creditors; (q) a custodian or a receiver is appointed for, or a
writ or order of attachment, execution or garnishment is issued, levied or made
against, any of Applicant's or any Guarantor's Property or assets; (r) an
application is made by any of Applicant's or any Guarantor's judgment creditors
for an order directing you to pay over money or to deliver other of Applicant's
or such Guarantor's Property; or (s) any government authority or any court takes
possession of any substantial part of Applicant's or any Guarantor's Property or
assets or assumes control over Applicant's or any Guarantor's affairs.
SECTION 14. REMEDIES. Upon the occurrence and continuance of any Event
of Default all amounts paid by you on any Demand which have not previously been
repaid to you, together with all interest on such amounts, and the Unpaid and
Undrawn Balance, if any, shall automatically be owing by Applicant to you and
shall be due and payable by Applicant on demand without presentment or any other
notice of any kind, including, without limitation, notice of nonperformance,
notice of protest, protest, notice of dishonor, notice of intention to
accelerate, or notice of acceleration, all of which are expressly waived by
Applicant. Upon payment of the Unpaid and Undrawn Balance to you Applicant shall
have no further legal or equitable interest therein, and you will not be
required to segregate on your books or records the Unpaid and Undrawn Balance
paid by Applicant. After you receive the Unpaid and Undrawn Balance, you agree
to pay to Applicant, upon termination of all of your liability under all the
Credits and Demands, a sum equal to the amount which has not been drawn under
all the Credits less all amounts due and owing to you from Applicant under or in
connection with the L/C Documents and the Loan Documents. Further, upon the
occurrence and continuance of any Event of Default, you may sell immediately,
without demand for payment, advertisement or notice to Applicant, all of which
are hereby expressly waived, any and all Collateral, received or to be received,
at private sale or public auction or at brokers' board or upon any exchange or
otherwise, at your option, in such parcel or parcels, at such times and places,
for such prices and upon such terms and conditions as you may deem proper, and
you may apply the net proceeds of each sale, together with any sums due from you
to Applicant, to the payment of any and all obligations and liabilities due from
Applicant to you under or in connection with the L/C Documents and the Loan
Documents, all without prejudice to your rights against Applicant with respect
to any and all such obligations and liabilities which may be or remain unpaid.
If any such sale be at brokers' board or at public auction or upon any exchange,
you may yourself be a purchaser at such sale free from any right of redemption,
which Applicant hereby expressly waive and release. All your rights and remedies
existing under the L/C Documents and the Loan Documents are in addition to, and
not exclusive of, any rights or remedies otherwise available to you under
applicable law. In addition to any rights now or hereafter granted under
applicable law, and not by way of limitation of any such rights, upon the
occurrence and continuance of any Event of Default, Applicant hereby authorizes
you at any time or from time to time, without notice to Applicant or to any
other person (any such notice being hereby expressly waived by Applicant) and to
the extent permitted by law, to appropriate and to apply any and all Applicant's
deposits (general or special, including, without limitation, indebtedness
evidenced by certificates of deposit) with you or elsewhere, whether matured or
unmatured, and any other indebtedness at any time held or owing by you to or for
Applicant's credit or its account, against and on account of Applicant's
obligations and liabilities to you under or in connection with any of the L/C
Documents or the Loan Documents, irrespective of whether or not you shall have
made any demand for payment of any or all such obligations and liabilities or
declared any or all such obligations and liabilities to be due and payable, and
although any or all such obligations and liabilities shall be contingent or
unmatured.
SECTION 15. WAIVERS. No delay, extension of time, renewal, compromise
or other indulgence which may occur or be granted by you under any L/C Document
or any Loan Document shall impair your rights or powers under this Agreement or
any Application. You shall not be deemed to have waived any of your rights under
this Agreement or any Application unless such waiver is in writing signed by
your authorized representative. No such waiver, unless expressly provided
therein, shall be effective as to any transactions which occur subsequent to the
date of such waiver or as to the continuance of any Event of Default after such
waiver. No amendment or modification of this Agreement shall be effective unless
it is in writing signed by Applicant's and your authorized representative(s).
SECTION 16. AMENDMENTS AND MODIFICATIONS TO CREDITS. At Applicant's
verbal or written request, or with Applicant's verbal or written consent, and
without extinguishing or otherwise affecting Applicant's obligations under this
Agreement or any Loan Document, you may with respect to any Credit, in writing
or by any other action, but you will not be obligated to, (a) increase the
amount of such Credit, (b) extend the time for, and amend or modify the terms
and conditions governing, the making and honoring of any Demand or Document or
any other terms and conditions of such Credit, or (c) waive the failure of any
Demand or Document to comply with the terms of such Credit, and any Collateral
pledged or granted to you in connection with such Credit will secure Applicant's
obligations to you with respect to such Credit as amended, modified or waived.
No amendment to, or modification of, the terms of any Credit will become
effective if the Beneficiary of such Credit or any confirming bank objects to
such amendment or modification. If any Credit is amended or modified in
accordance with this Section, Applicant shall be bound by, and obligated under,
the provisions of this Agreement with respect to such Credit as so amended or
modified, and any action taken by you or any advising, confirming, negotiating,
paying or other bank in accordance with such amendment or modification.
SECTION 17. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement and each Application shall bind Applicant's heirs, executors,
administrators, successors and assigns, and all rights, benefits and privileges
conferred on you under or in connection with each L/C Document and each Loan
Document shall be and hereby are extended to, conferred upon and may be enforced
by your successors and assigns. Applicant will not assign this Agreement or
Applicant's obligations or liabilities to you under or in connection with any
L/C Document or Loan Document to any person or entity without your prior written
approval.
SECTION 18. GOVERNING LAW. This Agreement and each Application, and
Applicant's and your performance under this Agreement and each Application,
shall be governed by and be construed in accordance with the laws of the State
of California. Unless you otherwise specifically agree in writing, each Credit,
the opening of each Credit, the performance by you under each Credit, and the
performance by the Beneficiary and any advising, confirming, negotiating, paying
or other bank under each Credit, shall be governed by and be construed in
accordance with the UCP in force on the date of the issuance of each Credit. In
the event that any Credit issued pursuant to this Agreement states that it is
governed by the laws of a jurisdiction other than the State of California, then
your performance under such Credit shall be governed.
SECTION 19. JURISDICTION AND SERVICE OF PROCESS. Any suit, action or
proceeding against Applicant under or with respect to any L/C Document may, at
your sole option, be brought in (a) the courts of the State of California, (b)
the United States District Courts in California, (c) the courts of Applicant's
jurisdiction of incorporation or principal office, or (d) the courts of the
jurisdiction where any Beneficiary, any advising, confirming, negotiating,
paying or other bank, or any other person or entity has brought any suit, action
or proceeding against you with respect to any Credit or any Demand, and
Applicant hereby submits to the nonexclusive jurisdiction of such courts for the
purpose of any such suit, action, proceeding or judgment and waives any other
preferential jurisdiction by reason of domicile. Applicant will accept joinder
in any suit, action or proceeding brought in any court or jurisdiction against
you by any Beneficiary, any advising, confirming, negotiating, paying or other
bank or any other person or entity with respect to any Credit or any Demand.
Applicant irrevocably waives trial by jury and any objection, including, without
limitation, any objection of the laying of venue or any objection based on the
grounds of forum non conveniens, which Applicant may now or hereafter have to
the bringing of any such action or proceeding. Applicant further waives any
right to transfer or change the venue of any suit, action or proceeding brought
against Applicant by you under or in connection with any L/C Document. Applicant
irrevocably consents to the service of process in any action or proceeding in
any court by the mailing of copies thereof by registered or certified mail,
postage prepaid, to Applicant at its address specified next to its signature on
this Agreement or at such other address as Applicant shall have notified to you
in writing, such service to be effective ten (10) days after such mailing.
SECTION 20. JOINT APPLICANTS. If this Agreement is signed by more than
one person and/or entity as an Applicant, this Agreement and the Applications
shall be the joint and several agreement of all such persons and/or entities and
that all references to "Applicant" or "Applicant's" in this Agreement and the
Applications shall refer to all such persons and/or entities jointly and
severally.
SECTION 21. SEVERABILITY. Any provision of any L/C Document which is
prohibited or unenforceable in any jurisdiction shall be, only as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability,
but all the remaining provisions of such L/C Document and all the other L/C
Documents shall remain valid.
SECTION 22. HEADINGS. The headings used in this Agreement are for
convenience of reference only and shall not define or limit the provisions of
this Agreement.
SECTION 23. CREDIT AGREEMENT. This Agreement and any related
Application have been entered into pursuant to the Secured Credit Agreement
dated August 14, 2003, among Applicant, as Borrower, Wells Fargo, as Agent, and
other financial institutions (the "Credit Agreement"). For so long as the Credit
Agreement remains in effect, the provisions of Sections 4, 5, 6, 9, 10, 13, 14,
and 15 of this Agreement shall not be effective. In the event that the Credit
Agreement is terminated and any Credit remains outstanding, then the provisions
of Sections 4, 5, 6, 9, 10, 13, 14, and 15 hereof shall thereafter apply to all
outstanding Credits until the obligations of the Applicant thereunder have been
satisfied in full.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN OREGON
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Section Oregon 1. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
COMMITMENTS MADE BY A LENDER AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION, AND BE SIGNED BY THE LENDER TO BE ENFORCEABLE.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN WASHINGTON
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Section Washington 1. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE
UNDER WASHINGTON LAW.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN NEBRASKA
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Section Nebraska 1. ENFORCEABILITY OF WRITTEN TERMS ONLY. A CREDIT
AGREEMENT MUST BE IN WRITING TO BE ENFORCEABLE UNDER NEBRASKA LAW. TO PROTECT
THE PARTIES FROM ANY MISUNDERSTANDINGS OR DISAPPOINTMENTS, ANY CONTRACT,
PROMISE, UNDERTAKING OR OFFER TO FOREBEAR REPAYMENT OF MONEY OR TO MAKE ANY
OTHER FINANCIAL ACCOMMODATION IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR
EXTENSION OF CREDIT, OR ANY AMENDMENT OF, CANCELLATION OF, WAIVER OF, OR
SUBSTITUTION FOR ANY OR ALL OF THE TERMS OR PROVISIONS OF ANY INSTRUMENT OR
DOCUMENT EXECUTED IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF
CREDIT, MUST BE IN WRITING TO BE EFFECTIVE.
ADDITIONAL PROVISIONS APPLICABLE IF THE APPLICANT IS LOCATED IN IOWA
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Section Iowa 1. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
ADDITIONAL PROVISIONS APPLICABLE IF APPLICANT IS LOCATED IN MISSOURI
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ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH
DEBT ARE NOT ENFORCEABLE REGARDLESS OF LEGAL THEORY UPON WHICH IT IS BASED THAT
IS IN ANY WAY RELATED TO THIS AGREEMENT. TO PROTECT YOU (BORROWER) AND US
(LENDERS AND AGENT) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENT WE
REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER
AGREE IN WRITING TO MODIFY IT.
Section Iowa 2. By signing this Agreement, Applicant acknowledges receipt
of a copy of this Agreement.
This Agreement is signed by Applicant's duly authorized representative or representatives on the date specified below.
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[Applicant's Name] [Applicant's Name]
By: By:
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Title: Title:
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Signature Signature
Address: Address:
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Date: Date:
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EXHIBIT E
REVOLVING NOTE
$_________________ St. Louis, Missouri
August ____, 2005
For value received, the undersigned FIRST BANKS, INC., a Missouri
corporation (the "Borrower"), hereby promises to pay on the Revolving Credit
Termination Date (as defined in the Credit Agreement, defined below), to the
order of _____________, a _____________ (the "Lender"), at the office of Wells
Fargo Bank, National Association, as agent (the "Agent") at Sixth Street and
Marquette Avenue, Minneapolis, Minnesota, or at any other place designated at
any time in accordance with the Credit Agreement (as hereinafter defined), in
lawful money of the United States of America and in immediately available funds,
the principal sum of _______________ Dollars ($______________) or, if less, the
aggregate unpaid principal amount of all Revolving Loans, as defined in the
Credit Agreement, made by the Lender to the Borrower under the Credit Agreement
together with interest on the principal amount hereunder remaining unpaid from
time to time (the "Principal Balance"), computed on the basis of the actual
number of days elapsed and a 360-day year, from the date hereof until this Note
is fully paid at the rate determined from time to time under the Amended and
Restated Credit Agreement dated August 11, 2005 (as amended, supplemented or
restated from time to time, the "Credit Agreement") by and among the Borrower,
the Lenders from time to time party thereto and Wells Fargo Bank, National
Association, as Agent for the Lenders thereunder. This Note may be prepaid only
in accordance with the Credit Agreement.
This Note is issued pursuant, and is subject, to the Credit Agreement,
which provides, among other things, for acceleration hereof. This Note is a
"Revolving Note" referred to in the Credit Agreement.
This Note is secured, among other things, pursuant to the several
security agreements delivered pursuant to the Credit Agreement, and may now or
hereafter be secured by one or more other security agreements or other
instruments or agreements.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Note is not paid
when due, whether or not legal proceedings are commenced.
Presentment or other demand for payment, notice of dishonor and protest
are expressly waived.
FIRST BANKS, INC.
By ___________________________________
Its _______________________________
EXHIBIT F
SAN FRANCISCO COMPANY GUARANTY
August _____, 2005
This Guaranty is made as of August ____, 2005 by the undersigned, THE
SAN FRANCISCO COMPANY, a Delaware corporation, in favor of WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as Agent for the "Lenders"
pursuant to the Secured Credit Agreement described below (the "Agent").
RECITALS
First Banks, Inc. (the "Borrower"), the Agent and certain financial
institutions have executed an Amended and Restated Secured Credit Agreement
dated as of August 11, 2005, (the "Credit Agreement"), pursuant to which such
financial institutions (the "Lenders") have agreed to lend up to $115,000,000 to
the Borrower and pursuant to which the Agent has agreed to issue up to
$7,500,000 in face amount of standby letters of credit for the account of the
Borrower.
One condition to the Lenders' and Agent's commitment under the Credit
Agreement is that the undersigned execute, deliver and perform this Guaranty,
thereby guaranteeing the payment and performance of all debts, liabilities and
obligations of the Borrower to the Agent and the Lenders arising out of the
Credit Agreement and any extensions, renewals or replacements thereof (the
"Indebtedness").
Now, therefore, in consideration of the premises, the undersigned
hereby agrees as follows:
1. No act or thing need occur to establish the liability of the
undersigned hereunder, and no act or thing, except full payment and discharge of
all Indebtedness, shall in any way exonerate the undersigned or modify, reduce,
limit, or release the liability of the undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the undersigned, whether or not all Indebtedness is paid in full, until
this Guaranty is revoked prospectively as to future transactions, by written
notice actually received by the Agent, and such revocation shall not be
effective as to Indebtedness existing or committed for at the time of actual
receipt of such notice by the Agent, or as to any renewals, extensions and
refinancings thereof.
3. If the undersigned shall be dissolved or shall be or become
insolvent then the Agent shall have the right to declare immediately due and
payable, and the undersigned will forthwith pay to the Agent, the full amount of
all Indebtedness, whether due and payable or unmatured. If the undersigned
voluntarily commences or there is commenced involuntarily against the
undersigned a case under the United States Bankruptcy Code, the full amount of
all Indebtedness, whether due and payable or unmatured, shall be immediately due
and payable without demand or notice thereof.
4. The undersigned shall be liable for all Indebtedness, without any
limitation as to amount, plus accrued interest thereon and all attorneys' fees,
collection costs and enforcement expenses referable thereto. Indebtedness may be
created and continued in any amount, whether or not in excess of such principal
amount, without affecting or impairing the liability of the undersigned
hereunder. The Agent may apply any sums received by or available to the Agent on
account of the Indebtedness from Borrower or any other person (except the
undersigned), from their properties, out of any collateral security or from any
other source to payment of the excess. Such application of receipts shall not
reduce, affect or impair the liability of the undersigned hereunder.
5. The undersigned will not exercise or enforce any right of
contribution, reimbursement, recourse or subrogation available to the
undersigned against any person liable to payment of the Indebtedness, or as to
any collateral security therefor, unless and until all of the Indebtedness shall
have been fully paid and discharged.
6. The undersigned will pay or reimburse the Agent for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Agent in connection with the protection, defense or enforcement of this
Guaranty in any litigation or bankruptcy or insolvency proceedings.
7. Whether or not any existing relationship between the undersigned and
Borrower has been changed or ended and whether or not this Guaranty has been
revoked, the Agent may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the undersigned and without any notice to the undersigned. The
liability of the undersigned shall not be affected or impaired by any of the
following acts or things (which the Agent is expressly authorized to do, omit or
suffer from time to time, both before and after revocation of this Guaranty,
without notice to or approval by the undersigned): (i) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver or indulgence granted to Borrower, any delay or
lack of diligence in the enforcement of Indebtedness, or any failure to
institute proceedings, file a claim, give any required notices or otherwise
protect any Indebtedness, (iv) any full or partial release of, settlement with,
or agreement not to sue, Borrower or any other guarantor or other person liable
in respect of any Indebtedness; (v) any discharge of any evidence of
Indebtedness or the acceptance of any instrument in renewal thereof or
substitution therefor; (vi) any failure to obtain collateral security (including
rights of setoff) for Indebtedness, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to
protect, insure, or enforce any collateral security; or any modification,
substitution, discharge, impairment, or loss of any collateral security; (vii)
any foreclosure or enforcement of any collateral security; (viii) any transfer
of any Indebtedness or any evidence thereof; (ix) any order of application of
any payments or credits upon Indebtedness; (x) any election by the Agent under
ss. 1111(b)(2) of the United States Bankruptcy Code.
8. The undersigned waives any and all defenses, claims and discharges
of Borrower, or any other obligor, pertaining to Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the undersigned will not assert, plead or enforce against the Agent
any defense of waiver, release, discharge in bankruptcy, statute of limitations,
res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to
Borrower or any other person liable in respect of any Indebtedness, or any
setoff available against the Agent to Borrower or any such other person, whether
or not on account of a related transaction. The undersigned expressly agrees
that the undersigned shall be and remain liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing Indebtedness,
whether or not the liability of Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision.
9. The undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
The Agent shall not be required first to resort for payment of the Indebtedness
to Borrower or other persons or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
Guaranty.
10. If any payment applied by the Agent to Indebtedness is thereafter
set aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
11. The liability of the undersigned under this Guaranty is in addition
to and shall be cumulative with all other liabilities of the undersigned to the
undersigned as guarantor or otherwise, without any limitation as to amount,
unless the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
12. This Guaranty shall be effective upon delivery to the Agent,
without further act, condition or acceptance by the Agent, shall be binding upon
the undersigned and the successors and assigns of the undersigned and shall
inure to the benefit of the Agent and the Lenders and their respective
participants, successors and assigns. Any invalidity or unenforceability of any
provision or application of this Guaranty shall not affect other lawful
provisions and application hereof, and to this end the provisions of this
Guaranty are declared to be severable. This Guaranty may not be waived,
modified, amended, terminated, released or otherwise changed except by a writing
signed by the undersigned and the Agent. This Guaranty shall be governed by the
laws of the State of Missouri. The undersigned waives notice of the Agent's
acceptance hereof and waives the right to a trial by jury in any action based on
or pertaining to this Guaranty.
13. This Guaranty, and each and all of the undersigned's obligations
hereunder, is secured by that certain San Francisco Company Security Agreement
of even date herewith, as hereafter amended, modified and supplemented and may
now be secured by one or more other security agreements or other instruments or
agreements.
In witness whereof, the undersigned has executed this Guaranty as of
the day and year first above written.
THE SAN FRANCISCO COMPANY
By ____________________________________
Its ________________________________
EXHIBIT G
SAN FRANCISCO COMPANY SECURITY AGREEMENT
This Agreement is made as of August _____, 2005, by and between THE SAN
FRANCISCO COMPANY, a Delaware Corporation ("Debtor") and WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as Agent for the "Lenders"
pursuant to the Secured Credit Agreement described below ("Secured Party").
RECITALS
First Banks, Inc., a Missouri corporation (the "Borrower"), Secured
Party and certain financial institutions have executed an Amended and Restated
Secured Credit Agreement dated as of August 11, 2005, (the "Credit Agreement"),
pursuant to which such financial institutions (the "Lenders") have agreed to
lend up to $115,000,000 to Borrower and pursuant to which Secured Party has
agreed to issue up to $7,500,000 in face amount of standby letters of credit for
the account of Borrower.
One condition to the Lenders' and Secured Party's commitments under the
Credit Agreement is that Debtor execute, deliver and perform this Agreement,
thereby granting a security interest to Secured Party, as agent for the Lenders,
in the Collateral described herein for the purpose of securing all
"Indebtedness", as that term is defined in that certain Guaranty of even date
herewith given by Debtor for the benefit of Secured Party (the "Guaranty").
Now, therefore, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
1. Security Interest and Collateral. To secure the prompt and complete
payment and performance of both said Indebtedness and any and all obligations of
Debtor arising under or on account of this Agreement (collectively the "Secured
Obligations"), Debtor hereby grants Secured Party (for its own account and as
agent for the Lenders) a security interest (the "Security Interest") in (i) all
of the capital stock of First Bank, a Missouri state bank, owned by Debtor, and
(ii) any capital stock that Debtor may hereafter acquire and deliver to Secured
Party pursuant to Section 8.8 of the Credit Agreement, and (iii) all proceeds of
such capital stock and all other rights in connection with such property
(collectively the "Collateral").
2. Representations, Warranties and Covenants. Debtor represents,
warrants and covenants that:
(a) Debtor will join with Secured Party in taking any action
required by Secured Party in order to perfect the Security Interest
and to protect the rights and priorities of Secured Party with respect
to the Collateral. To that end, Debtor has delivered to Secured Party
certificates representing all of the shares of capital stock
constituting Collateral and executed and delivered one blank stock
power for each such certificate. Debtor will, at Secured Party's
request at any one or more times (i) duly endorse, in blank, each and
every additional security certificate and instrument constituting
Collateral by signing on such certificate or instrument or by signing
a separate document of assignment or transfer and delivery to Secured
Party each and every such additional security certificate and
instrument; (ii) join with Secured Party in executing any instructions
or agreements with securities intermediaries for the purpose of
obtaining control of any investment property that may hereafter
constitute Collateral; and (iii) instruct the issuer of any security
that may hereafter constitute Collateral to register such security in
the name of Secured Party.
(b) Debtor is the owner of the Collateral free and clear of all
liens, encumbrances, security interests and restrictions except the
Security Interest and any restrictive legend appearing on any security
certificate or any instrument constituting Collateral.
(c) Debtor will keep the Collateral free and clear of all liens,
encumbrances and security interests, except the Security Interest.
(d) Debtor will pay, when due, all taxes and other governmental
charges levied or assessed upon or against any Collateral.
(e) Debtor will upon receipt deliver to Secured Party all
investment property distributed on account of Collateral, such as
stock dividends and securities resulting from stock splits,
reorganizations and recapitalizations. The Security Interest shall
attach to all such proceeds.
3. Events of Default. The occurrence of any Event of Default under the
Credit Agreement shall be an Event of Default hereunder.
4. Remedies Upon Event of Default. Upon the occurrence of an Event of
Default and during the continuance thereof, Secured Party may exercise any one
or more of the rights and remedies specified in the Credit Agreement or in the
Guaranty, and also any one or more of the following rights or remedies: (i)
notify the obligor on or issuer of any Collateral or any securities intermediary
to make payment to Secured Party of any amounts due or distributable on any
Collateral, (ii) receive and keep in its possession or under its control subject
to the Security Interest all proceeds of Collateral, except that any money
received from the Collateral may, at Secured Party's option, be applied in
reduction of the Secured Obligations; (iii) exercise all voting and other rights
as a holder of any Collateral; (iv) exercise and enforce any or all rights and
remedies available upon default to a secured party under the Uniform Commercial
Code, including the right to (A) order any securities intermediary to sell any
Collateral on any established market or over the counter or to cause any
Collateral to be redeemed; (B) give any transfer or redemption order to any
issuer of Collateral; or (C) offer and sell Collateral privately to purchasers
who will agree to take the Collateral for investment and not with a view to
distribution and who will agree to the imposition of restrictive legends on any
certificates representing Collateral, and the right to arrange for a sale which
would otherwise qualify as exempt from registration under the Securities Act of
1933; and if notice to Debtor of any intended disposition of Collateral or any
other intended action is required by law in a particular instance, such notice
shall be deemed commercially reasonable if given at least 10 calendar days prior
to the date of intended disposition or other action; and (v) exercise or enforce
any or all other rights or remedies available to Secured Party by law or
agreement against any Collateral, against Debtor or against any other person or
property.
5. Secured Party's Duties. Secured Party's duty of care with respect to
Collateral in its possession (as imposed by law) shall be deemed fulfilled if
Secured Party exercises reasonable care in physically safekeeping such
Collateral, or in the case of Collateral in the custody or possession of a
securities intermediary or other third person, exercises reasonable care in the
selection of the securities intermediary or other third person and Secured Party
need not otherwise preserve, protect, insure or care for any Collateral. Secured
Party shall not be obligated to preserve any rights Debtor may have against
prior parties, to exercise at all or in any particular manner any voting rights
which may be available with respect to any Collateral, to realize on the
Collateral at all or in any particular manner or order, or to apply any cash
proceeds of Collateral in any particular order of application. Regardless of the
manner in which Secured Party chooses to exercise control over Collateral
(whether by possession, by agreement with an issuer or Securities Intermediary,
by transferring security entitlements into its own account, or otherwise),
Secured Party shall not be deemed to be under any obligation to Debtor, whether
as fiduciary, trustee, agent or otherwise, except the duty of good faith, the
duties specifically imposed upon Secured Party by this Agreement, and the duties
imposed upon it as a secured party by Articles 1, 8 and 9 of the Uniform
Commercial Code, as in effect in Missouri.
6. Miscellaneous. Any disposition of Collateral in the manner provided
in Section 4 shall be deemed commercially reasonable. This Agreement can be
waived, modified, amended, terminated or discharged, and the Security Interest
can be released, only explicitly in a writing signed by Secured Party. A waiver
signed by Secured Party shall be effective only in the specific instance and for
the specific purpose given. Mere delay or failure to act shall not preclude the
exercise or enforcement of any of Secured Party's rights or remedies. All rights
and remedies of Secured Party shall be cumulative and may be exercised
singularly or concurrently, at Secured Party's option, and the exercise or
enforcement of any one such right or remedy shall neither be a condition to nor
bar the exercise or enforcement of any other. All notices to be given to Debtor
shall be deemed sufficiently given if delivered or mailed by registered or
certified mail, postage prepaid, to Debtor at the address set forth following
its signature on the signature page of this Agreement or at the most recent
address shown on Secured Party's records. Debtor will reimburse Secured Party
for all expenses (including reasonable attorneys' fees and legal expenses)
incurred by Secured Party in the protection, defense or enforcement of the
Security Interest, including expenses incurred in any litigation or bankruptcy
or insolvency proceedings. This Agreement shall be binding upon and inure to the
benefit of Debtor and Secured Party and their successors and assigns and shall
take effect when signed by Debtor and delivered to Secured Party, and Debtor
waives notice of Secured Party's acceptance hereof. This Agreement shall be
governed by the internal laws of the State of Missouri and, unless the context
otherwise requires, all terms used herein which are defined in Articles 1, 8 and
9 of the Uniform Commercial Code, as in effect in Missouri, shall have the
meanings therein stated. If any provision or application of this Agreement is
held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can be
given effect, and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby. All representations and warranties contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the Secured Obligations.
IN WITNESS WHEREOF, Debtor has executed this Agreement as of the day
first above written.
THE SAN FRANCISCO COMPANY
Address:
By
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Its
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EXHIBIT H
TERM LOAN NOTE
$_________________ St. Louis, Missouri
August ______, 2005
For value received, the undersigned FIRST BANKS, INC., a Missouri
corporation (the "Borrower"), hereby promises to pay to the order of
_________________, a _____________ (the "Lender"), at the office of Wells Fargo
Bank, National Association, as agent (the "Agent") at Sixth Street and Marquette
Avenue, Minneapolis, Minnesota, or at any other place designated at any time in
accordance with the Credit Agreement (as hereinafter defined), in lawful money
of the United States of America and in immediately available funds, the
principal sum of _______________ Dollars ($______________) or, if less, the
aggregate unpaid principal amount of all Term Loans, as defined in the Credit
Agreement, made by the Lender to the Borrower under the Credit Agreement
together with interest on the principal amount hereunder remaining unpaid from
time to time (the "Principal Balance"), computed on the basis of the actual
number of days elapsed and a 360-day year, from the date hereof until this Note
is fully paid at the rate determined from time to time under the Amended and
Restated Secured Credit Agreement of even date herewith (as amended,
supplemented or restated from time to time) by and among the Borrower, the
Lenders from time to time party thereto and Wells Fargo Bank, National
Association, as Agent for the Lenders thereunder (the "Credit Agreement"). This
Note may be prepaid only in accordance with the Credit Agreement.
The Principal Balance shall be repaid in ten (10) equal calendar
quarterly installments, beginning March 31, 2006, equal to five percent (5%) of
the Principal Balance, with a final payment equal to the entire remaining
principal balance (and all accrued and unpaid interest and other sums due under
this Agreement) due on the Maturity Date, as defined in the Credit Agreement.
This Note is issued pursuant, and is subject, to the Credit Agreement.
This Note is a "Term Note" referred to in the Credit Agreement.
This Note is secured, among other things, pursuant to the several
security agreements delivered pursuant to the Credit Agreement, and may now or
hereafter be secured by one or more other security agreements or other
instruments or agreements.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Note is not paid
when due, whether or not legal proceedings are commenced.
Presentment or other demand for payment, notice of dishonor and protest
are expressly waived.
BORROWER: FIRST BANKS, INC.
By __________________________________
Its _________________________________
EXHIBIT I
NOTICE OF BORROWING
Pursuant to Section _______ of that certain Amended and Restated
Secured Credit Agreement dated as of August 11, 2005, as amended, supplemented
or otherwise modified to the date hereof (said Credit Agreement, as so amended,
supplemented or otherwise modified, being the "Credit Agreement," the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among First Banks, Inc., a Missouri corporation (the
"Borrower"), the financial institutions listed therein as Lenders (the
"Lenders"), and Wells Fargo Bank, National Association, as Agent (the "Agent"),
this represents Borrower's request to borrow as follows:
1. Date of borrowing: ___________________, _________
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2. Amount of borrowing: $___________________
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3. Type of Loans: [Revolving Loans] [Term Loan] [Second Term Loan]
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4. Interest rate option:
--------------------
[ ] a. Floating Rate Loan(s)
[ ] b. Eurodollar Rate Loans with an initial Interest Period of
_______ month(s)
The proceeds of such Loans are to be deposited in an account designated
by the Borrower at First Bank or in such other manner as the Agent and the
Borrower may agree in writing.
The undersigned officer, to the best of his or her knowledge, and
Borrower certify that:
(i) With respect to Loans, the representations and warranties contained
in the Credit Agreement and the other Loan Documents are true, correct and
complete in all material respects on and as of the date hereof to the same
extent as though made on and as of the date hereof, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties were true, correct and complete in all
material respects on and as of such earlier date; provided, that, if a
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representation and warranty is qualified as to materiality, with respect to such
representation and warranty the materiality qualifier set forth above shall be
disregarded for purposes of this condition;
(ii) No event has occurred and is continuing or would result from the
consummation of the borrowing contemplated hereby that would constitute a
Default or an Event of Default.
DATED: ___________________ FIRST BANKS, INC.
By:
--------------------------------
Title:
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EXHIBIT J
NOTICE OF CONVERSION/CONTINUATION
Pursuant to Section ______ of that certain Amended and Restated Secured
Credit Agreement dated as of August 11, 2005, as amended, supplemented or
otherwise modified to the date hereof (said Credit Agreement, as so amended,
supplemented or otherwise modified, being the "Credit Agreement," the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among First Banks, Inc., a Missouri corporation (the
"Borrower"), the financial institutions listed therein as Lenders, and Wells
Fargo Bank, National Association, as Agent (the "Agent"), this represents
Borrower's request to convert or continue Loans as follows:
1. Date of conversion/continuation: __________________, _______
2. Amount of Loans being converted/continued:$___________________
3. Type of Loans being converted/continued: [Revolving Loans] [Term
Loan] [Second Term Loan]
4. Nature of conversion/continuation:
[ ] a. Conversion of Floating Rate Loans to Eurodollar Rate Loans
[ ] b. Continuation of Eurodollar Rate Loans as such
5. If Loans are being continued as or converted to Eurodollar Rate
Loans, the duration of the new Interest Period that commences on the
conversion/continuation date: _______________ month(s)
In the case of a conversion to or continuation of Eurodollar Rate
Loans, the undersigned officer, to the best of his or her knowledge, and
Borrower certify that no Default or Event of Default has occurred and is
continuing.
DATED: ____________________ FIRST BANKS, INC.
By:
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Title:
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EXHIBIT K
PERMISSIBLE SECURITIES
The following qualify as "Permissible Securities:"
Valuation Percentage
--------------------
A. Cash 100%
B. (x) Negotiable debt obligations issued by the U.S. Treasury Department or the
Government National Mortgage Association ("Ginnie Mae"), or (y) mortgage-backed
securities issued by Ginnie Mae (but with respect to either (x) or (y) excluding
interest only or principal only stripped securities, securities representing
residual interests in mortgage pools, and securities that are not listed on a
national securities exchange or regularly quoted in a national quotation
service) and in each case having a remaining maturity of:
(i) less than one year 100%
(ii) one year or greater but less than 10 years 98%
(iii) ten years or longer 95%
C. (x) Negotiable debt obligations issued by the Federal Home Loan Mortgage
Association ("Freddie Mac") or (y) mortgage-backed securities issued by Freddie
Mac but excluding interest only or principal only stripped securities,
securities representing residual interests in mortgage pools, and securities
that are not listed on a national securities exchange or regularly quoted in a
national quotation service. 95%
EXHIBIT L
NOTICE OF PERMITTED ACQUISITION
This Notice is being submitted on this ___ day of ________, 200__,
pursuant to Section 8.9 of the Amended and Restated Secured Credit Agreement
dated as of August 11, 2005, (the "Credit Agreement"), by and among Wells Fargo
Bank, National Association (the "Agent"), the Lenders that are parties thereto,
and First Banks, Inc., as Borrower. Capitalized terms used but not defined
herein shall have the meanings set forth in the Credit Agreement.
The undersigned officer of the Borrower hereby notifies the Lenders
that [the Borrower] [_________ (name of Subsidiary)] has entered into an
agreement to purchase [______% of the voting common stock] [all of the assets of
the business] [all of the assets of the ______ branch(s)] of
________________________________ (name and organizational details of acquired
entity). A brief description of the transaction, including the form of the
acquisition, amount and nature of the consideration, and expected date of
completion, is attached to this Notice as Annex A.
The undersigned officer hereby certifies to the Lenders that:
A. The representations and warranties contained in Article VII of
the Credit Agreement are correct as of the date hereof and will
be correct after giving effect to the proposed acquisition,
except to the extent that the same relate specifically to an
earlier date; and
B. No Default or Event of Default has occurred and is continuing, or
will occur as a result of the proposed acquisition.
This will confirm that promptly upon request of Agent or any Lender,
First Banks, Inc. will provide to the Agent copies of any applications to
regulatory agencies submitted in connection with the proposed acquisition.
Signed as of the day and year first above written.
FIRST BANKS, INC.
By
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[name and office held]