EXHIBIT 10.1
FIRST AMENDED REVOLVING CREDIT NOTE
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$30,000,000.00 St. Louis, Missouri
August 11, 2008
Introductory Information: This is the first amendment to the Revolving
Credit Note dated May 15, 2008 executed by FIRST BANKS, INC., payable to the
order of INVESTORS OF AMERICA LIMITED PARTNERSHIP (the "Original Note"). As of
the date hereof, the principal balance of the Original Note is $30,000,000.00.
Capitalized terms used but not defined in this paragraph have the meanings given
to such terms in the Original Note. Lender made an initial advance in the amount
of $30,000,000.00 on May 15, 2008 (the "Initial Advance"). Borrower and Lender
have agreed to amend the provisions of the Original Note with regard to
Advances, and such amendments are incorporated into Section 2 hereof. This First
Amended Revolving Credit Note is issued pursuant to, and is subject to, the
provisions of the letter agreement dated May 14, 2008 executed by Lender and
Borrower.
1. FOR VALUE RECEIVED, the undersigned, FIRST BANKS, INC., a Missouri
corporation ("Borrower"), hereby promises to pay to the order of INVESTORS OF
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AMERICA LIMITED PARTNERSHIP, a Nevada limited partnership ("Lender"), on June
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30, 2009, or earlier if the principal amount hereof is accelerated pursuant to
Section 9 below (the "Maturity Date"), the principal sum of Thirty Million
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Dollars ($30,000,000) or, if less, the amount of all unpaid advances (each, an
"Advance;" and collectively, "Advances") made by Lender to Borrower under this
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Revolving Credit Note, as amended (this "Note"). The aggregate principal amount
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of Advances which Lender shall be committed to have outstanding under this Note
at any one time shall not exceed Thirty Million Dollars ($30,000,000); which
amount may be borrowed, paid, reborrowed and repaid, in whole or in part,
subject to the terms and conditions of this Note referred to below.
2. Borrower shall give Lender oral or written notice (a "Notice of
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Borrowing") by noon (St. Louis time) on the second Business Day prior to the
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date of each Advance to be made to Borrower, specifying: (a) the date of such
Advance, which shall be a Business Day; and (b) the aggregate principal amount
of such Advance. Without the prior written consent of Lender, Borrower shall not
submit a Notice of Borrowing requesting, and Lender shall not be obligated to
make, an Advance subsequent to the Initial Advance in an amount which would
cause the aggregate principal amount outstanding to exceed Ten Million Dollars
($10,000,000.00). A Notice of Borrowing shall not be revocable by Borrower.
Subject to the terms and conditions of this Note, provided that Lender has
received the Notice of Borrowing, Lender shall (unless Lender determines that
any applicable condition specified in this Note has not been satisfied) make the
applicable Advance to Borrower not later than 2:30 p.m. (St. Louis time) on the
Business Day specified in said Notice of Borrowing. If Lender makes a new
Advance under this Note on a day on which Borrower is required to or has elected
to repay all or any part of an outstanding Advance, Lender shall apply the
proceeds of its new Advance to make such repayment and only an amount equal to
the difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by Lender to Borrower, or remitted by Borrower to
Lender, as the case may be.
3. Interest on each Advance under this Note shall accrue at an annual
rate equal to the LIBOR Rate. Interest on each Advance hereunder shall be
payable monthly in arrears on the first (1st) day of each month commencing on
the first such date after such Advance is made and on the Maturity Date.
Lender's internal records of applicable interest rates shall be determinative in
the absence of manifest error. From and after the Maturity Date, whether by
reason of acceleration or otherwise, interest shall accrue and be payable on
demand on the outstanding principal balance of this Note at an annual rate equal
to Five Percent (5%) over and above the LIBOR Rate. If Borrower fails to make
any payment of any principal of or interest on this Note when the same shall
become due and payable, whether by reason of maturity, acceleration or
otherwise, in addition to all of the other rights and remedies of Lender under
this Note and/or at law or in equity, Borrower shall pay Lender on demand with
respect to each such late payment a late fee in an amount equal to Five Percent
(5%) of the amount of each such late payment. Interest shall be computed on the
basis of a year consisting of 360 days and paid for actual days elapsed.
4. Borrower shall make each payment of principal of, and interest on,
this Note and all other amounts payable under this Note not later than 12:00
noon (St. Louis time) on the date when due, in Federal or other immediately
available funds to Lender at 600 James S. McDonnell Boulevard, Hazelwood,
Missouri 63042, or such other address as Lender may from time to time specify in
writing. Any such payment received by Lender after 12:00 noon (St. Louis time)
shall be deemed to have been paid on the next succeeding Business Day. Whenever
any payment of principal of, or interest on, this Note shall be due on a day
which is not a Business Day, the date for payment thereof shall be extended to
the next succeeding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon, at the then
applicable rate, shall be payable for such extended time. The acceptance by
Lender of any payment of principal or interest due under this Note after the
date it is due shall not be held to establish a custom or waive any rights of
Lender to enforce prompt payment of any further payments or otherwise.
5. Borrower shall have the right to prepay all or any portion from time
to time of the unpaid principal of this Note prior to the Maturity Date,
provided that on each prepayment date, Borrower shall pay to the order of Lender
all accrued and unpaid interest on the principal portion of this Note being
prepaid to and including the date of such prepayment.
6. Borrower hereby represents and warrants to Lender that (a) the
execution, delivery and performance by Borrower of this Note (i) have been duly
authorized by all necessary corporate action on the part of Borrower, (ii)
require no consent, approval or authorization of, action by or in respect of or
filing or recording with any governmental or regulatory body, instrumentality,
authority, agency or official or any other person or entity, and (iii) do not
conflict with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under or result in any violation of, Borrower's Articles
of Incorporation, By-Laws, any applicable law, rule, regulation, order, writ,
judgment or decree of any court or governmental or regulatory body,
instrumentality, authority, agency or official or any agreement, document or
instrument to which Borrower is a party or by which Borrower or any of its
property or assets is bound or to which Borrower or any of its property or
assets is subject, (b) this Note has been duly executed and delivered by
Borrower and constitutes the legal, valid and binding obligation of Borrower and
is enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), (c) no part of the proceeds of
this Note will be used for personal, family or household purposes, and (d)
Borrower is not engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System, as amended) and no part of the proceeds of any
Advance under this Note will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately (i) to purchase or carry margin
stock or to extend credit to others for the purpose of purchasing or carrying
margin stock, or to refund or repay indebtedness originally incurred for such
purpose or (ii) for any purpose which entails a violation of, or which is
inconsistent with, the provisions of any of the Regulations of the Board of
Governors of the Federal Reserve System, including, without limitation,
Regulations U, T and X thereof, as amended.
7. Borrower hereby covenants and agrees to deliver to Lender as soon as
available, and in any event within five (5) days after the filing of same, each
quarterly Bank Holding Company Performance Report filed by Borrower with the
Board of Directors of the Federal Reserve System.
8. This Note is described in and secured by the Stock Pledge Agreement
dated as of the date of the Original Note, executed by Borrower in favor of
Lender, as the same may from time to time be amended, modified, extended,
renewed or restated (the "Stock Pledge Agreement"), pursuant to which Borrower
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shall pledge to Lender as security for this Note all of the shares of the
outstanding common stock of The San Francisco Company, a Delaware corporation,
and Coast Financial Holdings, Inc., a Florida corporation, as more particularly
described therein (the "Pledged Shares").
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9. If any of the following events (each an "Event of Default;" and
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collectively, "Events of Default") shall occur: (a) Borrower shall fail to make
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any payment of any principal of, interest on or other amount due under this Note
within five (5) days after the same shall become due and payable, whether by
reason of demand, maturity, acceleration or otherwise; (b) any representation or
warranty made by Borrower in this Note shall prove to have been untrue or
incorrect in any material respect when made; (c) Borrower shall fail to perform
or observe any other term, covenant or provision contained in this Note and such
failure shall remain unremedied for thirty (30) days after the earlier of (i)
written notice of default is given to Borrower by Lender or (ii) an officer of
Borrower obtaining knowledge of such failure; (d) Borrower shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership, liquidation or similar law, (ii) consent to the
institution of, or fail to contravene in a timely and appropriate manner, any
such proceeding or the filing of any such petition, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator or similar
official of itself, himself or herself or a substantial part of its property or
assets, (iv) file an answer admitting the material allegations of a petition
filed against itself in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its inability or
failure generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing; (e) an involuntary proceeding
shall be commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of Borrower, or of a
substantial part of the property or assets of Borrower, under Title 11 of the
United States Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership, liquidation or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar official of Borrower or of
a substantial part of the property or assets of Borrower or (iii) the winding up
or liquidation of Borrower; and any such proceeding or petition shall continue
undismissed for thirty (30) consecutive days or an order or decree approving or
ordering any of the foregoing shall continue unstayed and in effect for thirty
(30) consecutive days; (f) dissolution, termination of existence or operations,
merger, consolidation or transfer of a substantial part of the property or
assets of Borrower; (g) an injunction, attachment or judgment shall be issued
against any of the property or assets of Borrower which could reasonably be
expected to have a material adverse effect on such property or assets; (h)
Borrower shall become insolvent in either the equity or bankruptcy sense of the
term; (i) Borrower shall have a judgment entered against it by a court having
jurisdiction in the premises, and such judgment shall not be appealed in good
faith (and execution of such judgment stayed during such appeal) or satisfied by
Borrower within thirty (30) days after the entry of such judgment; (j) any
"Event of Default" (as defined therein) shall occur under or within the meaning
of the Stock Pledge Agreement; (k) the Stock Pledge Agreement shall at any time
for any reason cease to be in full force and effect or shall be declared to be
null and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by any of parties thereto,
or if Borrower shall deny that it has any further liability or obligation
thereunder or if Borrower shall fail to comply with or observe any of the terms,
provisions or conditions contained in the Stock Pledge Agreement; (l) Borrower
shall be declared by Lender to be in default on, or pursuant to the terms of,
(i) any other present or future obligation to Lender, including, without
limitation, any other loan, line of credit, revolving credit, guaranty or letter
of credit reimbursement obligation or (ii) any other present or future agreement
purporting to convey to Lender a lien or encumbrance upon, or a security
interest in, any of the property or assets of Borrower; or (m) any default or
event of default shall occur under or within the meaning of any other agreement,
document or instrument heretofore, now or hereafter executed by Borrower with or
in favor of Lender; then, and in each such event (other than an event described
in clauses (d) or (e) above), Lender may, at its option, declare the entire
outstanding principal balance of this Note and all accrued and unpaid interest
thereon to be immediately due and payable, whereupon all of such outstanding
principal balance and accrued and unpaid interest shall become and be
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Borrower, and
Lender may exercise any and all other rights and remedies which it may have
under the Stock Pledge Agreement (including foreclosure of the Pledged Shares)
and/or at law or in equity; provided, however, that upon the occurrence of any
event described in clauses (d) or (e) above, the entire outstanding principal
balance of this Note and all accrued and unpaid interest thereon shall
automatically become immediately due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower, and Lender may exercise any and all other rights and remedies which
it may have under the Stock Pledge Agreement (including foreclosure of the
Pledged Shares) and/or at law or in equity.
10. In the event that any payment of any principal of, interest on or
other amount due under this Note shall not be paid when due after taking into
account any notice, grace or cure periods, whether by reason of maturity,
acceleration or otherwise, and this Note is placed in the hands of an attorney
or attorneys for collection or for foreclosure of the Pledged Shares, or if this
Note is placed in the hands of an attorney or attorneys for representation of
Lender in connection with bankruptcy or insolvency proceedings relating to or
affecting this Note, Borrower hereby promises to pay to the order of Lender, in
addition to all other amounts otherwise due on, under or in respect of this
Note, the costs and expenses of such collection, foreclosure and representation,
including, without limitation, reasonable attorneys' fees and expenses (whether
or not litigation shall be commenced in aid thereof). All parties hereto
expressly waive presentment, demand for payment, notice of dishonor, protest and
notice of protest.
11. Borrower hereby agrees to pay or reimburse Lender upon demand for (i)
all out-of-pocket costs and expenses including, without limitation, reasonable
attorneys' fees and expenses, incurred by Lender in connection with the
preparation, negotiation, execution and administration of this Note, the Stock
Pledge Agreement, and any and all other agreements, documents and instruments
relating to this Note (collectively, the "Loan Documents"), (ii) all search,
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recording and filing fees incurred by Lender in connection with this Note and
the other Loan Documents, (iii) all out-of-pocket costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses, incurred by Lender
in connection with the preparation of any waiver or consent under any of the
Loan Documents or any amendment, modification, extension, renewal and/or
restatement of any of the Loan Documents or any Event of Default under this
Note; and (iv) if an Event of Default under this Note occurs, all out-of-pocket
costs and expenses, including, without limitation, reasonable attorneys' fees
and expenses, incurred by Lender in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom. Borrower
further agrees to pay or reimburse Lender for any stamp or other taxes which may
be payable with respect to the execution, delivery, recording and/or filing of
this Note or any of the other Loan Documents. All of the obligations of Borrower
under this paragraph shall survive the satisfaction and payment of this Note.
12. To the extent that Lender receives any payment on account of
Borrower's obligations under this Note and any such payment(s) or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, subordinated and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy act, state or Federal law, common law or
equitable cause, then, to the extent of such payment(s) received, Borrower's
obligations under this Note or part thereof intended to be satisfied shall be
revived and continue in full force and effect, as if such payment(s) had not
been received by Lender and applied on account of Borrower's obligations under
this Note.
13. BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY MISSOURI STATE COURT SITTING IN THE COUNTY OF ST. LOUIS,
MISSOURI OR ANY UNITED STATES OF AMERICA COURT SITTING IN THE EASTERN DISTRICT
OF MISSOURI, EASTERN DIVISION, AS LENDER MAY ELECT, IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, (B) AGREES THAT ALL CLAIMS
IN RESPECT TO ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HELD AND DETERMINED IN
ANY OF SUCH COURTS, (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, (D) WAIVES ANY CLAIM
THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM AND (E) WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION
WHICH BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF HIS PRESENT OR SUBSEQUENT
DOMICILES. BORROWER (AND BY ITS ACCEPTANCE HEREOF, LENDER) HEREBY IRREVOCABLY
WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH BORROWER
AND LENDER ARE PARTIES RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS
NOTE.
14. This Note may not be changed, nor may any term, condition or Event of
Default be waived, modified or discharged orally but only by an agreement in
writing, signed by Lender. No failure or delay by Lender in exercising any
right, remedy, power or privilege under this Note shall operate as a waiver
thereof; nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. In addition, Lender may, without notice to and without releasing the
liability of Borrower, add or release one or more parties or release any
collateral or security for this Note in whole or in part.
15. This notice is provided pursuant to Section 432.047 R.S.Mo. As used
herein, "creditor" means Lender and "this writing" means this Note and the other
Loan Documents. 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 THE LEGAL THEORY UPON WHICH
IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU
(BORROWER(S)) AND US (CREDITOR) 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. This Note embodies the entire
agreement and understanding between Borrower and Lender and supersedes all prior
agreements and understandings (oral or written) relating to the subject matter
hereof.
16. This Note shall be governed by and construed in accordance with the
substantive laws of the State of Missouri (without reference to conflict of law
principles).
17. Certain definitions applicable to this Note are attached hereto and
incorporated by reference as Exhibit A.
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Borrower:
FIRST BANKS, INC.
By: /s/ Terrance M. McCarthy
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Terrance M. McCarthy
President and
Chief Executive Officer
Exhibit A
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(Definitions)
"Business Day" shall mean any day (other than a Saturday or Sunday) on
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which commercial banks are open for business in St. Louis, Missouri.
Eurodollar Business Day shall mean any Business Day on which commercial
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bank(s) are open for international business (including dealings in dollar
deposits) in London.
LIBOR Base Rate shall mean an annual rate (rounded upwards, if necessary,
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to the next higher 1/16 of 1%) equal to the three-month British Bankers'
Association interest settlement rates for U.S. Dollar deposits, as published by
Bloomberg Financial Services, Dow Jones Market Service, Telerate, Reuters or any
other service from time to time used by Lender.
LIBOR Margin shall mean Three Percent (3.0%).
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LIBOR Rate shall mean the sum of the LIBOR Base Rate plus the LIBOR Margin.
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The LIBOR Rate shall be adjusted automatically on and as of the effective date
of any change in the LIBOR Base Rate.