EXHIBIT 10.3
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") dated as of May 19, 2008,
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.
WHEREAS, pursuant to that certain Secured Credit Agreement dated as of
August 8, 2007, as amended by that certain First Amendment to Secured Credit
Agreement and Second Amendment to Secured Credit Agreement, each dated as of
February 12, 2008 (the foregoing, collectively, the "Credit Agreement"), each
made by and among Borrower, Agent, and the Lenders, Lenders, severally, made
available (a) a revolving credit facility in the amount of One Hundred
Twenty-Five Million Dollars ($125,000,000) including (i) a revolving letter of
credit sub-facility in the amount of Five Million Dollars ($5,000,000), and (ii)
a swingline loan sub-facility (from Swingline Lender only (as defined in the
Credit Agreement)) in the amount of Ten Million Dollars ($10,000,000), with
certain term loan conversion privileges; and (b) the right to increase the
credit facilities described at (a) above by an amount up to Twenty-Five Million
Dollars ($25,000,000); and
WHEREAS, as of the date hereof, (a) the aggregate outstanding principal
balance of the Revolving Loans is Zero Dollars ($0), (b) the aggregate
outstanding principal balance of all Term Loans is Zero Dollars ($0), and (c)
the aggregate amount of outstanding Letters of Credit (including matured but
unsatisfied Obligations of Reimbursement) is One Million Two Hundred Thousand
Dollars ($1,200,000) (which for purposes hereunder shall constitute the Maximum
Reimbursement Obligation pursuant to Section 2.3.3 of the Credit Agreement); and
WHEREAS, Borrower desires, and the Lenders have agreed, notwithstanding
the terms and provisions of the Credit Agreement, to allow Borrower to
terminate the Credit Agreement, all 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:
1. Affirmation of Recitals; Definitions. The recitals are true and
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correct and incorporated herein by this reference. Capitalized terms not
otherwise defined herein shall have the same meaning as in the Credit Agreement.
2. Termination.
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(a) Effective upon the date all of the conditions provided for
in Section 5 hereof shall have either been satisfied or expressly waived
in writing by Agent (the "Effective Date"), the Credit Agreement,
together with any obligation of any Lender to make any Advances or issue
additional Letters of Credit, and all obligations of Borrower and
Guarantors thereunder and under all Loan Documents, shall be terminated
in their entirety (the "Termination"); provided, however, and
notwithstanding the foregoing, Sections 12.3, 12.5, 12.7, 13.4, and 13.5
of the Credit Agreement shall survive the Termination.
(b) The parties acknowledge that, as of May 19, 2008,
Borrower's outstanding Obligations under the Credit Agreement
(including, but not limited to, principal and all accrued and unpaid
interest, as well as any fees accrued pursuant to Section 5.2 of the
Credit Agreement (the "L/C Fees") but excluding the Maximum
Reimbursement Obligation)), total One Thousand Three Hundred Ninety-Six
and 08/100 Dollars ($1,396.08) (the "Outstanding Balance").
(c) (i) Until this Agreement is executed, on and after May 19,
2008, the commitment fee payable pursuant to Section 5.1 shall accrue
at the rate of Three Hundred Nineteen and 86/100 Dollars ($319.86),
and such sums shall by this reference be added to the Outstanding
Balance; and (ii) until all outstanding Letters of Credit are returned
to Agent, on and after May 19, 2008, the L/C Fees payable pursuant to
Section 5.2 of the Credit Agreement shall accrue at the rate of
Twenty-Nine and 16/100 Dollars ($29.16) per day, and such sums shall
by this reference be added to the Outstanding Balance.
3. Special Account.
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(a) On or before the Effective Date, Borrower shall pay to
the Agent in immediately available funds, for deposit in a deposit
account established with Agent for the sole purpose of holding such
funds, an amount equal to the Maximum Reimbursement Obligation, which
shall be held in a Special Account. Borrower hereby grants to the Agent,
for the benefit of the Lenders, a "Security Interest" in the Special
Account and all funds held therein from time to time and all proceeds
thereof, as security for the payment of all Obligations. Borrower will
join with Agent in taking any action required by Agent in order to
perfect the Security Interest and to protect the rights and priorities
of the Lenders with respect to the Special Account.
(b) Any interest earned on funds 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 Borrower's Obligation of Reimbursement or any other
Obligations, in the Agent's sole discretion, and shall not be subject
to withdrawal by Borrower so long as the Agent maintains a security
interest therein. After the Maximum Reimbursement Obligation shall
have been fully satisfied, the Agent shall transfer any remaining
balance in the Special Account to Borrower.
4. Eurodollar Breakup Funds.
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(a) Prior to the Effective Date, Borrower paid to Agent, for
the benefit of the Lenders, the sum of Nine Thousand Four and 85/100
Dollars ($9,004.85) (the "Breakup Funds"), from which each Lender
shall be compensated, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts) to the
Agent, for all losses and expenses payable by Borrower pursuant to
Section 5.5(b)(iii) of the Credit Agreement (the "Damages").
(b) Each Lender shall submit to Agent a certificate as to any
such Damages (including calculations, in reasonable detail, showing
how that Lender computed such loss or expense). Such Damages 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) In the event that the Breakup Funds are insufficient to
reimburse all Lenders for their Damages, within two (2) business days
after written demand by the Agent (the "Demand Notice") Borrower shall
remit to the Agent a sum equal to the excess of the aggregate Damages
over the Breakup Funds, as provided in the Demand Notice.
(d) A notice from any Lender to the Agent, on the one hand, or
from the Agent to the Borrower, on the other, claiming compensation
and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of error by the Lender.
In determining any such amount, a Lender may use any reasonable
averaging and attribution methods.
(e) If after ninety (90) days from the Effective Date there
remains a balance of the Breakup Funds that has not been claimed as
Damages by any Lender, the Agent shall transfer any remaining balance
in the Breakup Funds to Borrower, and Borrower shall have no further
liability for any of Lender's Damages.
5. Conditions to Effectiveness. All agreements of Lenders herein are
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subject to and conditioned upon the Agent having received (or there
shall have been satisfied or waived by Agent) on or before May 19, 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) Fund the Special Account in an amount equal to the Maximum
Reimbursement Obligation.
(d) The Outstanding Balance (less the Maximum Reimbursement
Obligation) in immediately available funds.
(e) Certificate of the Secretary of the Borrower certifying
(i) that the execution, delivery and performance of this
Agreement has been duly approved by all necessary action
of the Board of Directors of Borrower, 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 Borrower, together with such copies, and
(iii) the names of the officers of Borrower who are
authorized to sign this Agreement, together with the true
signatures of such officers.
(f) All fees and expenses of Polsinelli Shalton Flanigan
Suelthaus PC, counsel for the Agent ("PSFS"), relating to
the preparation, negotiation, and execution of this
Agreement, as well as any fees and expenses incurred by
PSFS in connection with the Credit Agreement and any
amendments (proposed or finalized) in connection
therewith.
6. Obligations Following the Effective Date. Following the Effective
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Date, Agent shall take such actions as are reasonably necessary to (a)
terminate all outstanding UCC filings against Borrower and the Subsidiaries; and
(b) release and return all Collateral, except the Special Account, that is in
the possession of Agent.
7. 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 contains 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.
8. Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the internal laws of the State of Missouri.
9. No Oral Agreements. The following notice is given pursuant to
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Section 432.047 of the Missouri Revised Statutes; nothing contained in such
notice shall be deemed to limit or modify the terms of the Agreement.
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.
[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, Missouri 63042
Attention: Lisa K. Vansickle By /s/ Lisa K. Vansickle
Telecopier: (314) 592-6621 ------------------------------------
Its Senior Vice President and
Chief Financial Officer
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(Signature Page to the Agreement Page 1 of 9)
Address: WELLS FARGO BANK, NATIONAL
Correspondent Banking ASSOCIATION, as Agent
MAC N8200-098
9th Floor
666 Walnut Street
Des Moines, IA 50309-3907 By /s/ Kelly Schuler
Attention: Kelly Schuler ------------------------------------
Telecopier: (515) 245-3304 Its Vice President
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(Signature Page to the Agreement Page 2 of 9)
Address: WELLS FARGO BANK, NATIONAL
Correspondent Banking ASSOCIATION, as Lender
MAC N8200-098
9th Floor
666 Walnut Street
Des Moines, IA 50309-3907 By /s/ Kelly Schuler
Attention: Kelly Schuler ------------------------------------
Telecopier: (515) 245-3304 Its Vice President
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(Signature Page to the Agreement Page 3 of 9)
Address: JP MORGAN CHASE BANK, N.A.,
Commercial Banking as Lender
JP Morgan Chase Bank, N.A.
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-4815
Attention: Douglas A. Gallun By /s/ Douglas A. Gallun
Telecopier: (414) 977-6787 -----------------------------------
Its Senior Vice President
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(Signature Page to the Agreement Page 4 of 9)
Address: LASALLE BANK NATIONAL
ASSOCIATION, as Lender
Bank of America, IL4-135-05-30
135 S. LaSalle Street, Suite 530
Chicago, Illinois 60603
Attention: Matthew J. Doherty By /s/ Matthew J. Doherty
Telecopier: (312) 904-2684 ------------------------------------
Its Senior Vice President
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(Signature Page to the Agreement Page 5 of 9)
Address: THE NORTHERN TRUST COMPANY,
50 South LaSalle Street, L-09 as Lender
Chicago, Illinois 60603
Attention: Lisa McDermott
Telecopier: (312) 444-4906
By /s/ Lisa McDermott
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Its Vice President
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(Signature Page to the Agreement Page 6 of 9)
Address: UNION BANK OF CALIFORNIA, N.A.,
445 South Figureroa Street as Lender
Los Angeles, California 90071
Attention: Dennis A. Cattell
Telecopier: (213) 236-5548
By /s/ Dennis A. Cattell
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Its Vice President
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(Signature Page to the Agreement Page 7 of 9)
Address: FIFTH THIRD BANK (CHICAGO),
Financial Institutions Group as Lender
222 South Riverside Plaza, 32nd Floor
Chicago, Illinois 60606
Attention: Brian W. Riley
Telecopier: (312) 704-2482 By /s/ Brian W. Riley
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Its Vice President
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(Signature Page to the Agreement Page 8 of 9)
Address: U.S. BANK NATIONAL ASSOCIATION,
Correspondent Banking as Lender
One U.S. Bank Plaza
Mailcode: SL-MO-T11S
St. Louis, Missouri 63101
Attention: Jaycee D. Greene By /s/ Jaycee D. Green
Telecopier: (314) 418-2173 ------------------------------------
Its Vice President
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(Signature Page to the Agreement Page 9 of 9)