Exhibit 10.1
FIRST AMENDMENT TO THE SECURED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THE SECURED CREDIT AGREEMENT (this
"Agreement"), dated as of February 12, 2008, is made and 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 ("Agent"). This Agreement
is based upon the following recitals which are made a material part of this
Agreement:
A. Pursuant to the terms and conditions of a certain Secured Credit
Agreement dated as of August 8, 2007 (the "Credit Agreement") by and among
Borrower, Lenders and Agent, Lenders agreed to make available to Borrower (i) a
revolving credit facility in the amount of One Hundred Twenty-Five Million
Dollars ($125,000,000) including (a) a revolving letter of credit sub-facility
in the amount of Five Million Dollars ($5,000,000), and (b) a swingline loan
sub-facility (from Swingline Lender only) in the amount of Ten Million Dollars
($10,000,000), with certain term loan conversion privileges; and (ii) the right
to increase the credit facilities described at (i) above by an amount up to
Twenty-Five Million Dollars ($25,000,000). Capitalized terms not otherwise
defined herein shall have the same meaning as in the Credit Agreement.
B. Borrower and Lenders have mutually agreed to amend the Credit
Agreement in certain respects, all upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower and Lenders hereby agree as follows, notwithstanding anything to the
contrary contained in the Loan Documents:
1. Affirmation of Recitals. The recitals are true and correct and
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incorporated herein by this reference.
2. Outstanding Principal Balance. As of the date hereof, (i) the
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aggregate outstanding principal balance of the Revolving Loans was $20,000,000,
(ii) the aggregate outstanding principal balance of all Term Loans was
$19,000,000, and (iii) the aggregate amount of outstanding Letters of Credit
(including matured but unsatisfied Obligations of Reimbursement) was $200,000.
Borrower hereby stipulates and agrees that the foregoing balances are true and
correct and that such amounts are due and owing in accordance with the terms of
the Loan Documents and are not subject to any claim of offset or defense
whatsoever.
3. Amendments. Effective upon the date each of the conditions
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provided for in Sections 6 and 7 hereof shall have either been satisfied or
expressly waived in writing by Lenders and Agent (the "Amendment Effective
Date"), the Credit Agreement is amended in the following respects:
(a) Section 1.1 is amended as follows:
(1) The defined term "Borrower Pledge Agreement" shall be
deleted in its entirety and replaced with the
following:
"Borrower Pledge Agreement" means the collateral pledge
agreement in the form of Exhibit 1.1 B, as amended by the
form of Exhibit 1.1 K, pledging to the Agent for the
ratable benefit of the Lenders all of the capital stock of
both San Francisco Company and Coast Financial.
(2) The following shall be added in between the defined
terms "Closing Date" and "Collateral":
"Coast Financial" means Coast Financial Holdings, Inc., a
Florida corporation.
"Coast Financial Guaranty" means the guaranty, in the form
of Exhibit 1.1 L, whereby Coast Financial guarantees to the
Lenders payment of the Obligations.
"Coast Financial Security Agreement" means the Coast
Financial Security Agreement, in the form of Exhibit 1.1 M,
pledging to the Agent for the ratable benefit of the Lenders
all of the capital stock of First Bank not owned by San
Francisco Company.
(3) The defined term "Collateral" shall be deleted in its
entirety and replaced with the following:
"Collateral" means collectively Borrower's Special Account
and all property which is subject or is to be subject to the
Liens granted by the Borrower Pledge Agreement, the San
Francisco Company Security Agreement, and the Coast
Financial Security Agreement.
(4) The defined term "Loan Documents" shall be deleted in
its entirety and replaced with the following:
"Loan Documents" means this Agreement, the Notes, the
Borrower Pledge Agreement, the San Francisco Company
Guaranty, the San Francisco Company Security Agreement, the
Coast Financial Guaranty, and the Coast Financial Security
Agreement, as each may be renewed, extended, amended,
rearranged, restructured, restated, replaced or otherwise
modified from time to time.
(5) The defined term "San Francisco Company Security
Agreement" shall be deleted in its entirety and
replaced with the following:
"San Francisco Company Security Agreement" means the San
Francisco Company Security Agreement, in the form of Exhibit
1.1 I, pledging to the Agent for the ratable benefit of the
Lenders all of the capital stock of First Bank not owned by
Coast Financial.
(b) Section 10.4 shall be deleted in its entirety and
replaced with the following:
10.4 Minimum Return on Assets. Beginning with the calendar
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quarter ending September 30, 2008 and determined as of each
calendar quarter end thereafter, the Borrower will maintain,
on a consolidated basis, its Return on Assets at not less than
.70%
(c) Section 10.5 shall be deleted in its entirety and
replaced with the following:
10.5 Maximum Non-Performing Assets.
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(a) Excepting only as otherwise provided in Section
10.5(b), 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.
(b) Notwithstanding the provisions of Section 10.5(a),
the Borrower will maintain, on a consolidated basis, its
Non-Performing Assets, determined as of only the end of the
following indicated quarters, not greater than the following
indicated percentages of its Primary Equity Capital: (i) for
the calendar quarter ended December 31, 2007, twenty-five
percent (25%); and (ii) for the calendar quarters ending
March 31, 2008 and June 30, 2008, thirty percent (30%).
(d) Section 10.6 shall be deleted in its entirety and
replaced with the following:
10.6 Allowance for Loan and Lease Losses. Excepting only as
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provided in the second sentence of this Section 10.6, the
Borrower will maintain, on a consolidated basis, its allowance
for loan and lease losses determined as of the end of each
calendar quarter at not less than 100% of its Non-Performing
Assets. Notwithstanding the foregoing, the Borrower will
maintain, on a consolidated basis, its allowance for loan and
lease losses determined as of the end of the following
indicated quarters only, not less than the following indicated
percentages of Non-Performing Assets: (a) for the calendar
quarter ended December 31, 2007, seventy percent (70%); and
(b) for the calendar quarters ending March 31, 2008 and June
30, 2008, sixty percent (60%). 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); provided however that if Borrower shall cease to be
required to file quarterly reports on Form 10-Q and/or annual
reports on Form 10-K, thereafter the allowance for loan and
lease losses at any time shall be as set forth in Borrower's
quarterly financial report, certified by Borrower's Chief
Financial Officer, and annual audit report, certified by the
auditor of such annual audit report.
(e) The following shall be added as Section 10.7:
10.7 Minimum Net Income. The Borrower's Net Income, on a
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consolidated basis, for the following indicated periods
shall be at least the following indicated amounts: (a) for the
calendar year ended December 31, 2007, $55,000,000; (b)for the
calendar quarter ending March 31, 2008, $3,000,000; and (c) for
the calendar quarter ending June 30, 2008, $10,000,000.
For the avoidance of confusion, there shall be no Net Income
requirement for calendar quarters ending after June 30, 2008.
(f) Except for Article I and Section 6.1 of the Credit
Agreement, each instance where the "San Francisco Company"
appears shall be replaced with the term "San Francisco Company
and Coast Financial."
(g) Except for Article I and Section 6.1 of the Credit
Agreement, each instance where the defined term "San Francisco
Company Guaranty" appears shall be replaced with the term "San
Francisco Company Guaranty and Coast Financial Guaranty."
(h) Except for Article I and Section 6.1 of the Credit
Agreement, each instance where the term "San Francisco Company
Security Agreement" appears shall be replaced with the term
"San Francisco Company Security Agreement and Coast Financial
Security Agreement."
(i) Schedules 7.4, 7.7, 9.1, 9.2 and 9.3 of the Credit
Agreement shall be amended, in their entirety, to read in the
same form as Exhibits A, B, C, D, and E, respectively, to this
Agreement.
(j) Exhibits 1.1 C, 2.1.2 A, 2.1.2 B, and 2.1.2 C of the
Credit Agreement shall be amended, in their entirety, to read
in the same form as Exhibits F, G, H, and I, respectively, to
this Agreement.
(k) Exhibits J, K, and L hereto shall be added to the Credit
Agreement as Exhibits 1.1 K, 1.1 L, and 1.1 M, respectively.
4. Other Provisions of Loan Documents. The Loan Documents are and
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(as modified and amended hereby) shall remain in full force and effect, and all
of the terms and provisions of the Loan Documents (as so modified and amended)
are hereby ratified and reaffirmed in all respects. All of the Collateral shall
remain subject to the liens, charges and encumbrances of the Loan Documents and
nothing herein contained, and nothing done pursuant hereto, shall affect the
liens or encumbrances of the Loan Documents, or the priority thereof with
respect to other liens or encumbrances, or release or affect the liability of
any party or parties whomsoever who may now or hereafter be liable under or on
account of the Loan Documents. As used in the preceding sentence, "Loan
Documents" shall mean the Loan Documents as modified or amended by this
Agreement.
5. Expenses. Borrower shall pay all of Agent's reasonable out-of-
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pocket costs, expenses, fees and charges incurred in connection with the
preparation, negotiation, and execution of this Agreement, including, without
limitation, all of Agent's reasonable attorneys' fees and disbursements. Failure
by Borrower to pay any such amounts upon demand by Agent shall constitute an
Event of Default. If Borrower fails to pay any such expenses on demand, then
Agent shall have the right to pay such expenses and the same shall constitute
additional indebtedness of Borrower to Agent evidenced, secured and guaranteed
by the Loan Documents.
6. Borrower's Representations and Warranties. Borrower hereby
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represents and warrants to and covenants with Lenders, as of the date of this
Agreement, as follows:
(a) The security interests granted under the Loan Documents have
been, are, and shall remain valid first, prior and paramount
liens on the Collateral, enjoying the same or superior
priority with respect to other claims upon the Collateral as
prevailed prior to the execution of this Agreement;
(b) Giving effect to this Agreement, no Default or Event of
Default has occurred and is continuing on the date of this
Agreement or shall have occurred and be continuing on the
Amendment Effective Date; and
(c) All resolutions, authorizations or consents on the part of
Borrower which are necessary for Borrower to execute and
deliver this Agreement and to be bound by the provisions
hereof have been obtained and are in full force and effect
on the date hereof, and this Agreement constitutes the
legal, valid and binding obligation of the Borrower and is
enforceable in accordance with the terms hereof.
Borrower acknowledges that Lenders have relied on the foregoing representations
and warranties in entering into this Agreement. In the event Borrower has made
any material misrepresentation to Lenders in connection with this Agreement,
such misrepresentation shall constitute an Event of Default under the Loan
Documents.
7. Conditions to Effectiveness. All of (i) the agreements of
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Lenders herein, (ii) the obligation of Lenders to hereafter make any Advances,
and (iii) the obligation of Agent to hereafter issue any letter of credit are
subject to and conditioned upon the Agent having received (or there shall have
been satisfied or waived) on or before February 12, 2008 (the "Closing Date"),
all of the following, each item to be delivered dated (unless otherwise
indicated) as of the Closing Date, and each in form and substance satisfactory
to each Lender:
(a) This Agreement duly executed by Borrower.
(b) Counterpart copies of this Agreement duly executed by the
Required Lenders.
(c) The Acknowledgement and Consent hereto duly executed by San
Francisco Company.
(d) The Amendment to the Borrower's Pledge Agreement, in the form of
Exhibit J hereto, duly executed by Borrower.
(e) The Coast Financial Guaranty and the Coast Financial Security
Agreement duly executed by Coast Financial.
(f) 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, San Francisco
Company, or Coast Financial, (ii) no financing statements have
been filed and remain in effect against any of the Borrower,
First Bank, San Francisco Company, or Coast Financial, except
financing statements perfecting only Liens permitted under
Section 9.1 of the Credit Agreement and (iii) no judgment liens
are in effect against any of the Borrower, First Bank, San
Francisco Company, or Coast Financial.
g) Separate certificates of the secretaries of the Borrower, San
Francisco Company, and Coast Financial certifying, in the case of
each such corporation, (i) that the execution, delivery and
performance of this Agreement and all 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 articles of incorporation and bylaws of such corporation,
together with such copies, and (iii) the names of the officers of
such corporation who are authorized to sign this Agreement and
all 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.
(h) Certificates of good standing of each of the Borrower, San
Francisco Company, Coast Financial, and First Bank, each dated
not more than twenty (20) days before the date of this Agreement.
(i) A signed copy of an opinion of counsel for the Borrower, San
Francisco Company, and Coast Financial, addressed to the Lenders
as to matters referred to in Sections 7.1, 7.2, 7.3, and 7.7 of
the Credit Agreement as if the representation set forth therein
were made as of the date hereof, 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.
(j) 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.
(k) Certificates representing, in the aggregate, all of the issued
and outstanding capital stock of First Bank owned by San
Francisco Company and one blank stock power executed by San
Francisco Company for each such certificate.
(l) Certificates representing, in the aggregate, all of t he issued
and outstanding capital stock of First Bank owned by Coast
Financial and one blank stock power executed by Coast Financial
for each such certificate.
(m) Certificates representing, in the aggregate, all of the issued
and outstanding capital stock of Coast Financial and one blank
stock power executed by Borrower for each such certificate.
(n) The representations and warranties contained in Article VII of
the Credit Agreement shall be true and correct as of the Closing
Date, except as specifically amended hereunder.
(o) The Borrower shall have paid to Agent any fees due in connection
with the Agreement, as required pursuant to that certain Side
Letter Agreement of even date herewith.
(p) The Borrower shall have paid to Polsinelli Shalton Flanigan
Suelthaus PC, counsel for the Agent ("PSFS"), all fees and
expenses of PSFS relating to the preparation, negotiation, and
execution of the Loan Documents.
(q) Amended Schedules 7.4, 7.7, 9.1, 9.2 and 9.3 to the Credit
Agreement so that such Schedules are true and correct as of the
Closing Date.
8. Miscellaneous. This Agreement shall be binding upon Borrower and
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Lenders, and their respective heirs, personal representatives, successors and
assigns. This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of such counterparts, taken together, shall
constitute one and the same agreement, even though all of the parties hereto may
not have executed the same counterpart of this Agreement. If any provision of
this Agreement shall be unlawful, then such provision shall be null and void,
but the remainder of this Agreement shall remain in full force and effect and be
binding on the parties. This Agreement and the Loan Documents referenced herein
contain all of the agreements of the parties relative to the subject matter of
this Agreement. Any prior agreements or commitments of Lenders, whether oral or
written, relating to the subject matter of this Agreement not expressly set
forth herein or in the exhibits hereto (if any) are null and void and superseded
in their entirety by the provisions hereof. This Agreement shall be binding upon
the execution and delivery of this Agreement by the last party to sign.
9. No Oral Agreements. This notice is provided pursuant to Section
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432.045, R.S.Mo. As used herein, "Creditor" means Bank and "this writing" means
this Agreement and all 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) AND US (LENDER) 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.
[Rest of Page Intentionally Blank, Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Address: FIRST BANKS, INC.
600 James S. McDonnell Blvd.
Mail Code M1-199-014 By: /s/ Lisa K. Vansickle
Hazelwood, Missouri 63042 ----------------------------------
Attention: Lisa K. Vansickle Its: Senior Vice President and
Telecopier: (314) 592-6621 Chief Financial Officer
ACKNOWLEDGEMENT AND CONSENT
The San Francisco Company hereby acknowledges and consents to the above
and foregoing First Amendment to the Secured Credit Agreement, dated February
12, 2008, and agrees that any and all of its obligations under or on account of
the Loan Documents are and remain in full force and effect unaffected by or on
account of said First Amendment to the Secured Credit Agreement, all as of
February 12, 2008.
THE SAN FRANCISCO COMPANY, a Delaware
Corporation
By: /s/ Lisa K. Vansickle
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Printed Name: Lisa K. Vansickle
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(SEAL) Title: Vice President and Treasurer
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Address: WELLS FARGO BANK, NATIONAL
MAC N9305-071 ASSOCIATION, as Agent
7th Floor
90 South 7th Street
Minneapolis, Minnesota 55402-3903
Attention: Troy Rosenbrook By: /s/ Troy Rosenbrook
Telecopier: (612) 667-3510 ---------------------------
Its: Senior Vice President
Address: WELLS FARGO BANK, NATIONAL
MAC N9305-071 ASSOCIATION, as both Lender and
7th Floor
90 South 7th Street as Swingline Lender
Minneapolis, Minnesota 55402-3903
Attention: Troy Rosenbrook By : /s/ Troy Rosenbrook
Telecopier: (612) 667-3510 ------------------------------
Its: Senior Vice President
Address: JP MORGAN CHASE BANK, N.A.
Commercial Banking
JP Morgan Chase Bank, N.A.
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-4815 By: /s/ Douglas A. Gallun
Attention Douglas A. Gallun ---------------------------
Telecopier: (414) 977-6787 Its: Senior Vice President
Address: LASALLE BANK NATIONAL ASSOCIATION
One North Brentwood, Suite 950
Clayton, Missouri 63105
Attention: Robert J. Mathias By: /s/ Robert J. Mathias
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Telecopier: (314) 621-1612 Its: Senior Banker
Address: THE NORTHERN TRUST COMPANY
50 South LaSalle Street, L-09
Chicago, Illinois 60603
Attention: Lisa McDermott By: /s/ Lisa McDermott
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Telecopier: (312) 444-4906 Its: Vice President
Address: UNION BANK OF CALIFORNIA, N.A.
445 South Figureroa Street
Los Angeles, California 90071
Attention: Dennis A. Cattell By: /s/ Dennis A. Cattell
Telecopier: (213) 236-5548 --------------------------
Its: Vice President
Address: FIFTH THIRD BANK (CHICAGO)
Financial Institutions Group
222 South Riverside Plaza, 32nd Floor
Chicago, Illinois 60606 By: /s/ Brian W. Riley
Attention: Brian W. Riley ------------------------
Telecopier: 312-704-2482 Its: Vice President
Address: U.S. BANK NATIONAL ASSOCIATION
Correspondent Banking
One U.S. Bank Plaza
Mailcode: SL-MO-T11S By:
St. Louis, Missouri 63101 --------------------------
Attention: Jaycee D. Greene Its: Vice President
Telecopier: (314) 418-2173