Exhibit 10.2
SECOND AMENDMENT TO THE SECURED CREDIT AGREEMENT
THIS SECOND 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 "Original Credit Agreement"), as
amended by that First Amendment to Credit Agreement, of even date herewith
("First Amendment," and, collectively, with the Original Credit Agreement, the
"Credit Agreement"), by and between 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 last to occur of (a) the date each
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of the conditions provided for in Sections 6 and 7 hereof shall have either been
satisfied or expressly waived in writing by Lenders and Agent, and (b) the
closing of the transactions contemplated by the First Amendment (the "Amendment
Effective Date"), the Credit Agreement is amended by deleting the defined term
"Revolving Credit Termination Date" in its entirety and replacing it with the
following:
"Revolving Credit Termination Date" means September 1, 2008.
4. Other Provisions of Loan Documents. The Loan Documents are and (as
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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) 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 all of
the Lenders.
(c) The Acknowledgement and Consent hereto duly executed by San
Francisco Company.
(d) The Acknowledgement and Consent hereto duly executed by
Coast Financial.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) Certificates representing, in the aggregate, all of the
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.
(k) 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.
(l) 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.
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 Second 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 Second 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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ACKNOWLEDGEMENT AND CONSENT
Coast Financial Holdings, Inc. hereby acknowledges and consents to the
above and foregoing Second 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 Second Amendment to the Secured Credit Agreement, all
as of February 12, 2008.
COAST FINANCIAL HOLDINGS, INC., a
Florida 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
100 South Hanley Road, Suite 1400 as Swingline Lender
7th Floor
90 South 7th Street
Minneapolis, Minnesota 55402-3903
Attention: Troy Rosenbrook By: /s/ Troy Roeenbrook
Telecopier: (612) 667-3510 ----------------------------------
Its: Senior Vice President
Address: JP MORGAN CHASE BANK, N.A.
Commercial Banking
JP Morgan Chase Bank, N.A.
11 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
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
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: 312-704-2982 Its: Vice President
Address: U.S. BANK NATIONAL ASSOCIATION
Correspondent Banking
One U.S. Bank Plaza
Mailcode: SL-MO-T11S By: /s/ Jaycee D. Greene
St. Louis, Missouri 63101 ----------------------------------
Attention: Jaycee D. Greene Its: Vice President
Telecopier: (314) 418-2173