Exhibit 10
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED SECURED CREDIT AGREEMENT
This FIRST AMENDMENT TO THE AMENDED AND RESTATED SECURED CREDIT AGREEMENT
(this "Agreement"), dated as of August 10, 2006, 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 ▇▇▇▇▇ 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 Amended and Restated
Secured Credit Agreement (the "Credit Agreement"), dated as of August 11, 2005,
and made by and between Borrower, Lenders and Agent, Lenders agreed to make
available to Borrower the Term Loan Commitment in the amount of One Hundred
Million Dollars ($100,000,000), the Revolving Credit Commitment in the amount of
Fifteen Million Dollars ($15,000,000), and the Letter of Credit Commitment in
the amount of Seven Million Five Hundred Thousand Dollars ($7,500,000).
Capitalized terms not otherwise defined herein shall have the same meaning as in
the Credit Agreement.
B. To further evidence the indebtedness of Borrower to Lenders pursuant
to the Credit Agreement, Borrower executed and delivered to Lenders the Notes,
each dated August 11, 2005.
C. The obligations of Borrower to Lenders pursuant to the Credit
Agreement and the Notes are further evidenced, secured and guaranteed by the
Borrower Pledge Agreement, San Francisco Company Guaranty and San Francisco
Company Security Agreement (the foregoing, with the Credit Agreement and the
Notes, are collectively referred to as the "Loan Documents" and individually as
a "Loan Document").
D. Borrower and Lenders have mutually agreed to: (i) severally decrease
the Revolving Credit Commitment to Ten Million Dollars ($10,000,000), (ii)
severally decrease the Letter of Credit Commitment Amount to One Million Dollars
($1,000,000), (iii) extend the term of each of the Revolving Credit Termination
Date and Letter of Credit Termination Date, and (iv) amend the Credit Agreement
to effectuate the foregoing and in certain other 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 August 10, 2006, (i) the
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aggregate outstanding principal balance the Revolving Loans was Zero Dollars
($0.00), (ii) the aggregate outstanding principal balance of all Term Loans was
$85,000,000, and (iii) the aggregate amount of outstanding Letters of Credit
(including matured but unsatisfied Obligations of Reimbursement) was Nine
Hundred Thousand Dollars ($900,000). 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 provided
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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 "Commitments" shall be amended, in its
entirety, to read as follows:
"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 Ten Million Dollars ($10,000,000), as
such amount may be adjusted 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.
(2) The defined term "Letter of Credit Commitment Amount"
shall be amended by substituting for the figures
"$7,500,000" the words and figures "One Million Dollars
($1,000,000)."
(3) The defined term "Letter of Credit Termination Date"
shall be amended by substituting for the date "August 10,
2006" the date "August 8, 2007."
(4) The defined term "Revolving Credit Termination Date,"
shall be amended by substituting for the date "August
August 10, 2006" the date "August 8, 2007."
(5) The defined term "Total Revolving Loan Commitment
Amount" shall be amended by substituting for the words and
figures "Fifteen Million Dollars ($15,000,000)" the words and
figures "Ten Million Dollars ($10,000,000)."
(b) Section 4.1(a) shall be amended, in its entirety, to read as
follows:
"for each Revolving Loan, Term Loan, or Obligation of Reimbursement,
at all times and to the extent the Eurodollar Rate is not applicable
thereafter, the Floating Rate."
(c) Section 4.1(b) shall be amended, in its entirety, to read as
follows:
"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 determined in
accordance with Section 4.7."
(d) Section 4.7 shall be amended, in its entirety, to read as
follows:
"Generally. The Revolving Loan Margin, the Term Loan Margin and
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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 100.0 112.5 112.5
1.00 to 1.00 or more, but 87.5 100.0 100.0
less than 1.75 to 1.00
Less than 1.00 to 1.00 75.0 87.5 87.5
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.
(e) Section 5.1 shall be amended by substituting for the words
and figures "20.0 basis points (0.200%)" the words and figures "17.5
basis points (0.175%)."
(f) Section 5.2(c) shall be amended by substituting for the words
and figures "20.0 basis points (0.200%)" the words and figures "17.5
basis points (0.175%)."
(g) Section 5.3 shall be amended, in its entirety, to read as
follows:
Section 5.3 Termination, Reduction, or Increase of the
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Revolving Credit Commitments.
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5.3.1 Termination or Reduction of the Revolving Credit
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Commitments. The Borrower may at any time and from time to time upon
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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.
5.3.2 Increase of the Revolving Credit Commitments.
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(a) The Borrower may, at its election at any time or from
time to time after August 10, 2006, and prior to thirty (30) days
before the Revolving Credit Termination Date, increase the Total
Revolving Loan Commitment Amount; provided and subject to the express
conditions precedent that: (i) each proposed increase in the Revolving
Credit Commitment Amount of any Lender shall be subject to the written
consent of such Lender (it being expressly agreed and understood by
the Borrower that no Lender has agreed or committed or otherwise
undertaken to agree or commit to increase the Revolving Credit
Commitment Amount of such Lender above such Lender's Revolving Credit
Commitment Amount as in effect on August 10, 2006, and set forth on
Exhibit B), (ii) each such increase of the Total Revolving Loan
Commitment Amount shall be in an amount that is an integral multiple
of Five Million Dollars ($5,000,000) and not less than Ten Million
Dollars ($10,000,000), (iii) the Borrower shall not request to
increase the Total Revolving Loan Commitment Amount if, after giving
effect to any permanent reduction of the Total Revolving Loan
Commitment Amount in accordance with Section 5.3.1, the sum of the
Total Revolving Loan Commitment Amount would exceed Fifty Million
Dollars ($50,000,000), (iv) the Borrower shall not request to increase
the Total Revolving Loan Commitment Amount more than twice, (v) no
Default or Event of Default shall have occurred and be continuing at
the time of such increase or as a result of such increase, (vi) each
increase of the Total Revolving Loan Commitment Amount may be made
ratably among the Lenders participating in such increase in accordance
with their respective Percentages, or may be made in such other
increments satisfactory to each such Lender, in each case subject to
the written consent of each such Lender, and (vii) notwithstanding
Article XII hereof, additional Persons may become Lenders under this
Agreement to accommodate such increase, subject to the consent of the
Borrower and the Agent, such consent not to be unreasonably withheld,
conditioned or delayed.
(b) The Borrower shall notify the Agent in writing of any
request to increase the Total Revolving Loan Commitment Amount under
this Section 5.3.2 at least thirty (30) days prior to the desired
effective date of such increase, specifying such election and the
effective date thereof, in the form of Exhibit M. Such notice shall be
accompanied by the resolutions of the board of directors of the
Borrower and The San Francisco Company approving such increase, as
certified by the Secretary or an Assistant Secretary of the Borrower
and The San Francisco Company. Within five (5) Bank Business Days
after receipt of any such notice, the Agent shall advise the Lenders
of the contents thereof. Each Lender shall have the option, in its
sole discretion, to subscribe for its Percentage of such requested
increase. The Lenders shall respond in writing to the Borrower's
request through the Agent within ten (10) Bank Business Days from
notification by the Agent of the Borrower's request for increase. Any
Lender not responding within ten (10) Bank Business Days shall be
deemed to have declined to participate in the Borrower's request for
increase to the Total Revolving Loan Commitment Amount. At the option
of the Borrower, any part of the increase in the Total Revolving Loan
Commitment Amount not so subscribed may be assumed by one or more
existing Lenders or assumed by another financial institution or
institutions designated by the Borrower and acceptable to each Lender
and the Agent, which consent shall not be unreasonably withheld,
conditioned or delayed, upon submission of the notice to Agent in the
form of Exhibit N, in the case of an existing Lender, or Exhibit O, in
the case of a new lender. Each notice delivered by the Borrower
pursuant to this Section 5.3.2 shall be irrevocable.
(c) If the Total Revolving Credit Amount shall be increased
as provided at this Section 5.3.2, before there shall be made any
Advance that would cause the Revolving Loans by any Lender to exceed
such Lender's Revolving Loan Commitment Amount (as the same existed
immediately before such increase), the Borrower shall execute and
deliver to such Lender a Revolving Note in the amount of such
increase, as well as deliver payment for all Agent Fees required under
that certain Fee Letter, by and between Agent and the Borrower, dated
as of July 10, 2006.
(h) Exhibit B of the Credit Agreement shall be amended, in its
entirety, to read in the same form as Exhibit A to this Agreement.
(i) Following Exhibit L of the Credit Agreement, Exhibits B, C,
and D to this Agreement shall be inserted, it being intended that the
same shall serve as Exhibits M, N, and O of the Credit Agreement,
respectively.
(j) Schedules 7.4, 7.7, and 9.2 of the Credit Agreement shall
be amended, in their entirety, to read in the same form as Exhibit E,
F, and G, respectively, to this Agreement.
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. As hereinafter used in
this Agreement, "Loan Documentation" shall mean the Loan Documents as
modified and amended by this Agreement. 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.
5. Expenses. Borrower shall pay all of Agent's reasonable out-of-pocket
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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 represents
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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 Lenders
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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 August 10, 2006 (the "Closing Date"), all
of the following, each item to be delivered dated (unless otherwise indicated)
as of the date hereof, 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) Acknowledgement and Consent hereto duly executed by The San Francisco
Company.
(d) The Notes with respect to the Total Revolving Loan Commitment Amount,
in amounts consistent with those set forth in Exhibit A hereto,
properly executed on behalf of the Borrower.
(e) 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 The San Francisco Company,
(ii) no financing statements have been filed and remain in effect
against any of the Borrower, First Bank or The San Francisco Company,
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 or First Bank or The San Francisco
Company.
(f) Separate certificates of the secretaries of the Borrower and The San
Francisco Company 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.
(g) Certificates of good standing of each of the Borrower, The San
Francisco Company and First Bank, each dated not more than twenty (20)
days before the date of this Agreement.
(h) A signed copy of an opinion of counsel for the Borrower and The San
Francisco Company, 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 7.7, 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.
(i) Certificates representing, in the aggregate, all of the issued and
outstanding capital stock of The San Francisco Company and one blank
stock power executed by Borrower for each such certificate.
(j) Certificates representing, in the aggregate, all of the issued and
outstanding capital stock of First Bank and one blank stock power
executed by The San Francisco Company for each such certificate.
(k) 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.
(l) Agent shall have received full payment of all fees owed by Borrower to
Agent that are required hereunder, as well as those fees as provided
for in that certain Fee Letter, by and between Agent and the Borrower,
dated as of July 10, 2006.
(m) Amended Schedules 7.4, 7.7, and 9.2 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, ▇.▇.▇▇. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Address: FIRST BANKS, INC., a Missouri
▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. corporation
Mail Code M1-199-014
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and
Chief Executive Officer
(SEAL)
ACKNOWLEDGEMENT AND CONSENT
The San Francisco Company hereby acknowledges and consents to the above and
foregoing First Amendment to the Amended and Restated Secured Credit Agreement
dated August 10, 2006, 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 Amended and Restated
Secured Credit Agreement, all as of August 10, 2006.
THE SAN FRANCISCO COMPANY, a Delaware
Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(SEAL) Title: Executive Vice President
(Signature Page to the Agreement Page 1 of 9)
Address: ▇▇▇▇▇ FARGO BANK, NATIONAL
MAC N2790-142 ASSOCIATION, as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Its: Vice President
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(Signature Page to the Agreement Page 2 of 9)
Address: ▇▇▇▇▇ FARGO BANK, NATIONAL
MAC N2790-142 ASSOCIATION, as Lender
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Its: Vice President
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(Signature Page to the Agreement Page 3 of 9)
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, N.A.
Commercial Banking
▇▇ ▇▇▇▇▇▇ Chase
IL1-1110 By: /s/ ▇▇▇▇▇▇▇ Paszcak
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ----------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Paszcak Its: Assistant Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ ------------------------------
(Signature Page to the Agreement Page 4 of 9)
Address: LASALLE BANK NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Its: Senior Banker
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(Signature Page to the Agreement Page 5 of 9)
Address: THE NORTHERN TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Its: Vice President
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(Signature Page to the Agreement Page 6 of 9)
Address: UNION BANK OF CALIFORNIA, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Its: Vice President
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(Signature Page to the Agreement Page 7 of 9)
Address: FIFTH THIRD BANK (CHICAGO)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ----------------------------------
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its: Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ ------------------------------
(Signature Page to the Agreement Page 8 of 9)
Address: U.S. BANK NATIONAL ASSOCIATION
Correspondent Banking
One U.S. Bank Plaza By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Mailcode: SL-MO-T11S ----------------------------------
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Its: Vice President
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP ------------------------------
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
(Signature Page to the Agreement Page 9 of 9)
Exhibit A
EXHIBIT B
LOAN COMMITMENT AMOUNTS
------------------------------- -------------------- ------------------- ------------------ ----------------------------------------
Revolving
Loan Term Loan
Name Commitment Commitment Percentage
Amount Amount Amount Notice Address
------------------------------- -------------------- ------------------- ------------------ ----------------------------------------
▇▇▇▇▇ Fargo Bank, National $2,653,061.21 $26,530,612.00 26.530612% MAC N2790-142
Association, as a Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier:(▇▇▇)-▇▇▇-▇▇▇▇
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▇▇ ▇▇▇▇▇▇ Chase Bank, N.A. $1,428,571.42 $14,285,714.00 14.285714% Commercial Banking
JPMorgan Chase
IL1-1110
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,▇▇ 60603
Attention: ▇▇▇▇▇▇▇ Paszcak
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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LaSalle Bank National $1,428,571.42 $14,285,714.00 14.285714% ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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The Northern Trust Company $816,326.51 $8,163,265.00 8.163265% ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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Union Bank of California, N.A. $1,224,489.81 $12,244,898.00 12.244898% ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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Fifth Third Bank (Chicago) $1,020,408.21 $10,204,082.00 10.204082% ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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U.S. Bank National Association $1,428,571.42 $14,285,714.00 14.285714% Correspondent Banking
One U.S. Bank Plaza
Mailcode: SL-MO-T11S
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------- -------------------- ------------------- ------------------ ----------------------------------------
Exhibit B
EXHIBIT M
FORM OF REQUEST FOR INCREASE IN
TOTAL REVOLVING LOAN COMMITMENT AMOUNT
▇▇▇▇▇ Fargo Bank, N.A., Agent
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
MAC N2790-142
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇:
Reference is made to the Amended and Restated Secured Credit Agreement
dated as of August 11, 2005 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement"), among First Banks, Inc., a Missouri
corporation ("Borrower"), the Lenders party thereto, and ▇▇▇▇▇ Fargo Bank,
National Association, in its separate capacity as the Agent. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
In accordance with Section 5.3.2 of the Credit Agreement, the Borrower
hereby requests an increase in the aggregate Total Revolving Loan Commitment
Amount from $_______________ to $_______________ (the "Increase"), pursuant to
this "Request for Increase in the Total Revolving Loan Commitment Amount." (The
Total Revolving Loan Commitment Amount may not exceed $50,000,000; minimum
aggregate Increase is Ten Million Dollars ($10,000,000) and thereafter in
multiples of Five Million Dollars ($5,000,000).) The requested effective date of
the Increase is ____________________ (at least 30 days from date of request).
The Borrower hereby certifies that as of the date hereof and the
effective date of the Increase:
(a) attached hereto as Exhibit A is a true, complete and correct
copy of the resolutions, duly adopted by the board of directors of the
Borrower and certified by the [Secretary] [Assistant Secretary] of the
Borrower, authorizing the Increase and such resolutions have not been
amended, modified, rescinded or revoked since their adoption, and
remain in full force and effect;
(b) all the representations and warranties contained in the
Credit Agreement are true and correct on and as of such date with the
same effect as though made on such date; and
(c) no Default, Event of Default, or event or condition which,
with the giving of any notice and/or the passage of time would
constitute a Default or Event of Default, has occurred and is
continuing, and none will occur as a result of the Increase.
Dated as of ________________________, 200__.
BORROWER: FIRST BANKS, INC.
By:
----------------------------
Title:
-------------------------
ACKNOWLEDGEMENT AND CONSENT
The San Francisco Company hereby acknowledges and consents to the
above and foregoing Request for Increase in the Total Revolving Loan Commitment
Amount, dated as of ________________________, 200__, 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 the Amended and Restated
Secured Credit Agreement, all as of August 11, 2005, as amended by the First
Amendment to the Amended and Restated Secured Credit Agreement, as of August 10,
2006.
THE SAN FRANCISCO COMPANY,
a Delaware Corporation
By:
------------------------------
Printed Name:
--------------------
(SEAL) Title:
---------------------------
Exhibit C
EXHIBIT N
FORM OF REQUEST FOR CONSENT TO INCREASE
▇▇▇▇▇ Fargo Bank, N.A., Agent
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
MAC N2790-142
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇:
We hereby refer to the Amended and Restated Secured Credit Agreement
dated as of August 11, 2005 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement"), among First Banks, Inc., a Missouri
corporation ("Borrower"), the Lenders party thereto, and ▇▇▇▇▇ Fargo Bank,
National Association, in its separate capacity as the Agent. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
In accordance with Section 5.3.2 of the Credit Agreement, we hereby
give you notice of, and request your consent to, the assumption by [insert
Lender name] (the "Increasing Lender"), a Lender, on [insert date] of an
increased Revolving Credit Commitment Amount in the amount of $_______________,
pursuant to this "Request for Consent to Increase."
IN WITNESS WHEREOF, the Borrower and the Increasing Lender have caused
this request to be executed by their respective duly authorized officials,
officers or agents as of ________________________, 200__.
BORROWER: FIRST BANKS, INC.
By:
------------------------------
Title:
---------------------------
INCREASING LENDER:
By:
------------------------------
Title:
---------------------------
ACKNOWLEDGEMENT AND CONSENT
The San Francisco Company hereby acknowledges and consents to the above
and foregoing Request for Consent to Increase, dated as of
________________________, 200__, 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 the Amended and Restated Secured Credit
Agreement, all as of August 11, 2005, as amended by the First Amendment to the
Amended and Restated Secured Credit Agreement, as of August 10, 2006.
THE SAN FRANCISCO COMPANY,
a Delaware Corporation
By:
------------------------------
Printed Name:
--------------------
(SEAL) Title:
---------------------------
Exhibit D
EXHIBIT O
FORM OF REQUEST FOR ADDITIONAL LENDER
▇▇▇▇▇ Fargo Bank, N.A., Agent
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
MAC N2790-142
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇:
We hereby refer to the Amended and Restated Secured Credit Agreement
dated as of August 11, 2005 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement"), among First Banks, Inc., a Missouri
corporation ("Borrower"), the Lenders party thereto, and ▇▇▇▇▇ Fargo Bank,
National Association, in its separate capacity as the Agent. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
In accordance with Section 5.3.2 of the Credit Agreement, we hereby
give you notice of, and request your consent to, the assumption on [insert
date], by [insert new Lender name] (the "Additional Lender") of a Revolving
Credit Commitment Amount in the amount of $____________ and all related rights,
benefits, obligations, liabilities and indemnities of a Lender under and in
connection with the Credit Agreement, pursuant to this "Request for Additional
Lender."
After giving effect to such assumption, the Additional Lender shall
have ___% of the aggregate amount of the Total Revolving Loan Commitment Amount,
or $__________.
The Additional Lender agrees that, upon receiving the consent of the
Agent to such assumption, the Additional Lender will be bound by the terms of
the Credit Agreement as fully and to the same extent as if the Additional Lender
were a Lender originally holding such interest in the Credit Agreement.
Attached to this Request for Additional Lender as Attachment A is a
completed administrative questionnaire, in the form supplied by Agent, setting
forth the administrative details for the Additional Lender.
IN WITNESS WHEREOF, the Borrower and the Additional Lender have caused
this request to be executed by their respective duly authorized officials,
officers or agents as of ________________________, 200__.
BORROWER: FIRST BANKS, INC.
By:
----------------------------
Title:
-------------------------
ADDITIONAL LENDER:
By:
----------------------------
Title:
-------------------------
ACKNOWLEDGEMENT AND CONSENT
The San Francisco Company hereby acknowledges and consents to the
above and foregoing Request for Additional Lender, dated as of
________________________, 200__, 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 the Amended and Restated Secured Credit
Agreement, all as of August 11, 2005, as amended by the First Amendment to the
Amended and Restated Secured Credit Agreement, as of August 10, 2006.
THE SAN FRANCISCO COMPANY, a
Delaware Corporation
By:
------------------------------
Printed Name:
--------------------
(SEAL) Title:
---------------------------
Exhibit E
SCHEDULE 7.4
SUBSIDIARIES
Subsidiary Owner Ownership Percentage
---------- ----- --------------------
The San Francisco Company First Banks, Inc. 100.00%
First Bank Capital Trust First Banks, Inc. 100.00%
First Bank Statutory Trust First Banks, Inc. 100.00%
First Bank Statutory Trust II First Banks, Inc. 100.00%
First Bank Statutory Trust III First Banks, Inc. 100.00%
First Bank Statutory Trust IV First Banks, Inc. 100.00%
First Bank Statutory Trust V First Banks, Inc. 100.00%
First Bank Statutory Trust VI First Banks, Inc. 100.00%
First Preferred Capital Trust III First Banks, Inc. 100.00%
First Preferred Capital Trust IV First Banks, Inc. 100.00%
First Bank The San Francisco Company 100.00%
Bank of San Francisco Realty Investors, Inc. First Bank 100.00%
First Bank Business Capital, Inc. (1) First Bank 100.00%
First Land Trustee Corp. First Bank 100.00%
Missouri Valley Partners, Inc. First Bank 100.00%
Small Business Loan Source LLC First Bank 51.00%
Small Business Loan Source Funding Corp. First Bank 100.00%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company First Bank 100.00%
Universal Premium Finance Corporation First Bank 100.00%
UPAC of California, Inc. UPAC 100.00%
---------------
(1) Formerly FB Commercial Finance, Inc. (Name change only)
Exhibit F
SCHEDULE 7.7
LITIGATION
None.
Exhibit G
SCHEDULE 9.2
INDEBTEDNESS
On June 30, 2005, Small Business Loan Source LLC ("SBLS LLC"), which
is a 51.0% owned subsidiary of First Bank, executed a Multi-Party Agreement by
and among SBLS LLC, First Bank, ▇▇▇▇▇▇ Services Corp. and the United States
Small Business Administration (the "SBA"), and a Loan and Security Agreement by
and among First Bank and the SBA (collectively, the Agreement) that provides a
$50.0 million warehouse line of credit for loan funding purposes. The Agreement
provided for an initial maturity date of June 30, 2008, which was extended on
June 15, 2006 by First Bank to June 30, 2009. Interest is payable monthly, in
arrears, on the outstanding balances at a rate equal to First Bank's prime
lending rate. Advances under the Agreement are secured by the assignment of
virtually all of the assets of SBLS LLC. The balance of advances outstanding
under the Agreement was $33.8 million at June 30, 2006. Interest expense
recorded under the Agreement by SBLS LLC for the six months ended June 30, 2006
was $1.2 million.
On May 31, 2006, Universal Premium Acceptance Corporation, a wholly
owned subsidiary of First Bank, executed a Promissory Note payable to First Bank
that provides a $150.0 million unsecured revolving line of credit for loan
funding and other general corporate purposes. The Promissory Note has a maturity
date of May 31, 2007. Interest is payable monthly, in arrears, on the
outstanding balances at a varying rate per annum which is forth (40) basis
points less than the Ninety-Day London Interbank Offering Rate (but may not
exceed the maximum rate of non-usurious interest allowed from time to time by
law, hereinafter called the "Highest Lawful Rate"), with adjustments in such
varying rate to be made on the first day of each quarterly period beginning on
October 1, 2006, and adjustments due to changes in the Highest Lawful Rate to be
made on the effective date of any change in the Highest Lawful Rate. The balance
of advances outstanding under the Promissory Note was $122.2 million at June 30,
2006. Interest expense recorded on the Promissory Note by Universal Premium
Acceptance Corporation for the six months June 30, 2006 was $430,000.
On May 31, 2006, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company, a wholly owned subsidiary
of First Bank, executed a Promissory Note payable to First Bank that provides a
$1.0 million unsecured revolving line of credit for future acquisitions, if any,
and general corporate purposes. The Promissory Note has a maturity date of May
31, 2007. Interest is payable monthly, in arrears, on the outstanding balances
at a varying rate per annum equal to First Bank's Prime Rate. The balance of
advances outstanding under the Promissory Note was $478,000 at June 30, 2006.
Interest expense recorded on the Promissory Note by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company
for the six months June 30, 2006 was $6,000.