Exhibit 10.20
Execution Copy
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND LIMITED WAIVER OF DEFAULT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
LIMITED WAIVER OF DEFAULT ("Amendment"), dated as of June 19, 2001, is by and
among PLACER CAPITAL CO., a California corporation ("Placer"), CALIFORNIA
COMMUNITY BANCSHARES, INC., a Delaware corporation ("CCB") (Placer and CCB may
be referred to individually and without distinction as a "Borrower" and
collectively as the "Borrowers"), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association (the "Bank").
RECITALS
WHEREAS, the Borrowers and the Bank entered into an Amended and
Restated Credit Agreement dated as of July 28, 2000 (the "Credit Agreement");
and
WHEREAS, the Borrowers and the Bank desire to make certain amendments
to the Agreement;
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is hereby agreed by and between Placer, CCB and the Bank as
follows:
Section 1. CAPITALIZED TERMS. All capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context otherwise requires.
Section 2. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended to add a new Section 6.10(f) to read as follows:
(f) Indebtedness incurred pursuant to loans made by CCB to
Placer for the purpose of paying the Obligations as they come due from
time to time, PROVIDED THAT the term of each such loan shall not exceed
three hundred and sixty-five (365) days.
Section 3. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment and
waiver contained herein shall become effective upon delivery to the Bank of, and
compliance by the Borrowers with, each of the following:
(a) The Bank shall have received this Amendment dated the date
of the delivery thereof, and duly executed by the Borrowers.
(b) The Bank shall have received a copy of the resolutions of
the Board of Directors of each of Placer and CCB authorizing the
execution, delivery and performance of this Amendment and the other
documents executed by the Borrowers in connection with this Amendment
(collectively, the "Amendment Documents"), certified as true and
accurate by its respective Secretary or Assistant Secretary, along with
a certification by such Secretary or Assistant Secretary (i) certifying
that there has been no amendment to the Articles of Incorporation or
Bylaws of Placer and CCB, respectively, since the same were delivered
to the Bank with a certificate of its respective Secretary dated July
28, 2000; and (ii) identifying the officers executing the Amendment
Documents and certifying as to their incumbency.
Section 4. DEFAULTS AND WAIVERS.
(a) DEFAULTS AND EVENTS OF DEFAULT. Under Section 6.10 of the
Credit Agreement, the Borrowers agreed not to incur, create, issue,
assume or suffer to exist any Indebtedness with five enumerated
exceptions. The Borrowers have advised the Bank that CCB has made
certain short-term loans to Placer for the purpose of paying the
Obligations as they become due. As a result, an Event of Default has
occurred under Section 7.1(c) of the Credit Agreement.
(b) WAIVER. Upon the date on which this Amendment becomes
effective, the Bank hereby waives the Borrowers' Defaults and Events of
Default described in the preceding Section 4(a) (the "Existing
Defaults"). The Borrowers agree that the waivers set forth in this
Section 4(b) shall be limited to the precise meaning of the words as
written herein and shall not be deemed (i) to be a consent to any
waiver or modification of any other term or condition of the Credit
Agreement or (ii) to prejudice any right or remedy that the Bank may
now have or may in the future have under or in connection with the
Credit Agreement with respect to other Defaults or Events of Default
The Borrowers acknowledge and agree that the waiver set forth in this
Section 4(b) is provided by the Bank as a financial accommodation to
the Borrowers. Except as expressly set forth herein, the waiver
described in this Section 4(b) shall not alter, affect, release or
prejudice in any way any of the Borrowers' obligations under the Credit
Agreement. The waivers set forth herein shall not constitute a waiver
by the Bank of any other Default or Event of Default, if any, under the
Credit Agreement, and shall not be, and shall not be deemed to be, a
course of action with respect thereto upon which the Borrowers may rely
in the future and the Borrowers hereby expressly waive any claim to
such effect.
Section 5. REPRESENTATIONS, WARRANTIES, AUTHORITY, NO ADVERSE CLAIM.
(a) REASSERTION OF REPRESENTATIONS AND WARRANTIES, NO DEFAULT.
The Borrower hereby represents that on and as of the date hereof and
after giving effect to this Amendment (a) all of the representations
and warranties contained in Article IV of the Credit Agreement are
true, correct and complete in all respects as of the date hereof as
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though made on and as of such date, except for changes permitted by the
terms of the Credit Agreement, and (b) there will exist no Default or
Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived.
(b) AUTHORITY, NO CONFLICT, NO CONSENT REQUIRED. The Borrower
represents and warrants that it has the power and legal right and
authority to enter into the Amendment Documents and has duly authorized
as appropriate the execution and delivery of the Amendment Documents
and other agreements and documents executed and delivered by the
Borrower in connection herewith or therewith by proper corporate
action, and none of the Amendment Documents nor the agreements
contained herein or therein contravene or constitute a default under
any agreement, instrument or indenture to which the Borrower is a party
or a signatory or a provision of the Borrower's Organizational
Documents or any other agreement or requirement of law, or result in
the imposition of any Lien on any of its property under any agreement
binding on or applicable to the Borrower or any of its property except,
if any, in favor of the Bank. The Borrower represents and warrants that
no consent, approval or authorization of or registration or declaration
with any Person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by
the Borrower of the Amendment Documents or other agreements and
documents executed and delivered by the Borrower in connection
therewith or the performance of obligations of the Borrower therein
described, except for those which the Borrower has obtained or provided
and as to which the Borrower has delivered certified copies of
documents evidencing each such action to the Bank.
(c) NO ADVERSE CLAIM. The Borrower hereby warrants,
acknowledges and agrees that no events have taken place and no
circumstances exist at the date hereof which would give the Borrower a
basis to assert a defense, offset or counterclaim to any claim of the
Bank with respect to the Borrower's obligations under the Credit
Agreement, as amended by this Amendment.
Section 6. AFFIRMATION OF CREDIT AGREEMENT. The Bank and the Borrower
each acknowledge and affirm that the Credit Agreement, as hereby amended, is
hereby ratified and confirmed in all respects and all terms, conditions and
provisions of the Credit Agreement, except as amended by this Amendment, shall
remain unmodified and in full force and effect. All references in any document
or instrument to the Credit Agreement are hereby amended and shall refer to the
Credit Agreement as amended by this Amendment.
Section 7. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This Amendment,
from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment shall control with respect to
the specific subjects hereof and thereof.
Section 8. SEVERABILITY. Whenever possible, each provision of this
Amendment and the other Amendment Documents and any other statement, instrument
or transaction contemplated hereby or thereby or relating hereto or thereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the applicable law of any jurisdiction, but, if any
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provision of this Amendment, the other Amendment Documents or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto shall be held to be prohibited, invalid or unenforceable under
the applicable law, such provision shall be ineffective in such jurisdiction
only to the extent of such prohibition, invalidity or unenforceability, without
invalidating or rendering unenforceable the remainder of such provision or the
remaining provisions of this Amendment, the other Amendment Documents or any
other statement, instrument or transaction contemplated hereby or thereby or
relating hereto or thereto in such jurisdiction, or affecting the effectiveness,
validity or enforceability of such provision in any other jurisdiction.
Section 9. SUCCESSORS. The Amendment Documents shall be binding upon
the Borrower and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Bank and their respective
successors and assigns.
Section 10. LEGAL EXPENSES. As provided in Section 8.2 of the Credit
Agreement, the Borrower agrees to reimburse the Bank, upon execution of this
Amendment, for all reasonable out-of-pocket expenses (including attorneys' fees
and legal expenses of Xxxxxx & Xxxxxxx LLP, counsel for the Bank) incurred in
connection with the Credit Agreement, including in connection with the
negotiation, preparation and execution of the Amendment Documents and all other
documents negotiated, prepared and executed in connection with the Amendment
Documents, and in enforcing the obligations of the Borrower under the Amendment
Documents, and to pay and save the Bank harmless from all liability for, any
stamp or other taxes which may be payable with respect to the execution or
delivery of the Amendment Documents, which obligations of the Borrower shall
survive any termination of the Credit Agreement.
Section 11. HEADINGS. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
Section 12. COUNTERPARTS. The Amendment Documents may be executed in
several counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts shall
be regarded as one and the same document, and either party to the Amendment
Documents may execute any such agreement by executing a counterpart of such
agreement.
Section 13. GOVERNING LAW. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date above written.
PLACER CAPITAL CO.
By: /s/ Anat Bird
------------------------------------
Its: President and Chief Executive Officer
CALIFORNIA COMMUNITY BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xx Xxxxxx
------------------------------------
Its: Vice President
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