EXHIBIT 10.28
FIRST AMENDMENT
TO
LETTER AGREEMENT
This First Amendment dated as of April 30, 1997 ("First Amendment"),
to that certain Letter Agreement, dated as of February 7, 1997 (the
"Agreement"), between National Mercantile Bancorp, a California corporation
("Company"), Wildwood Enterprises Inc. Profit Sharing Plan and Trust
("Purchaser") and Xxxxxx Xxxxxxx ("Xxxxxxx"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement.
RECITALS
1. The Company, Purchaser and Xxxxxxx have entered into the
Agreement providing for the Company to sell to the Purchaser or Xxxxxxx (if
Purchaser is prohibited from purchasing) and Purchaser or Xxxxxxx to purchase
from the Company up to $500,000 of noncumulative convertible preferred stock,
$10.00 stated value ("Preferred Stock"), for the purchase price and upon the
terms and conditions set forth in the Agreement.
2. Purchaser and the Company desire to extend the date by which the
transactions contemplated by the Agreement must be consummated to June 30, 1997.
3. Purchaser and Xxxxxxx desire to relieve Xxxxxxx of any obligation
under the Agreement to purchase the Preferred Stock.
4. The Agreement as originally drafted did not accurately reflect
the amount to be purchased by Purchaser or Xxxxxxx, as the case may be.
5. Based on the Purchaser's percentage allocation, Purchaser will
purchase a maximum aggregate of $550,000 of Preferred Stock.
6. Purchaser, Xxxxxxx and the Company desire to amend the Agreement
to reflect the foregoing facts, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements hereinafter set forth and for other fair and adequate consideration,
the receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Section 1.2 of the Agreement shall be deleted in its entirety and
replaced with the following:
1.2 MINIMUM PURCHASE BY PURCHASER AND TIER I STANDBY PURCHASERS.
Subject to the terms, conditions and limitations herein set
forth, the Company agrees to issue and sell to the Purchaser, and
the Purchaser severally agrees to purchase from the Company,
ratably with all Tier I Standby Purchasers in accordance with the
percentage allocation set forth on Schedule A and Schedule B, at
the subscription price and otherwise in accordance with this
agreement, an amount not less than the Additional Shares, but in
no event shall the Subscription Price paid by Wildwood
Enterprises Inc. Profit Sharing Plan and Trust exceed $550,000.
2. Section 5.1 of the Agreement shall be deleted in its entirety and
replaced with the following:
5.1 ORGANIZATION. The Purchaser is a trust created pursuant to
an "employee pension benefit plan" within the meaning of Section
3(2) of ERISA. Purchaser has full power and authority under the
terms of all applicable laws, governmental rules and governmental
regulations, including, without limitation, ERISA and the Code,
to perform its obligations under this Agreement.
3. Section 5.2 of the Agreement shall be deleted in its entirety and
replaced with the following:
5.2 INVESTMENT INTENT. The Purchaser is acquiring the Preferred
Shares pursuant to this Agreement for its own account for
investment only and not with a view to any distribution thereof
within the meaning of the Securities Act.
4. Section 5.3 of the Agreement shall be deleted in its entirety and
replaced with the following:
5.3 AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized by all necessary action required of an entity such as
the Purchaser, executed and delivered by the Purchaser, and
constitutes a valid, legal and binding obligation of the
Purchaser, enforceable in accordance with its terms, except as
such enforceability may be limited by ERISA or the Code or by
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general
principles of equity. The execution and delivery of this
Agreement, the consummation by the Purchaser of the transactions
herein contemplated and the compliance by the Purchaser with the
terms hereof do not and will not conflict with, or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Purchaser is a party or by which any of the Purchaser's
properties or assets are bound, or any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Purchaser or any of the Purchaser's
properties or assets; and no consent, approval, authorization,
order, registration or qualification of or with any such
government, governmental instrumentality or court, domestic or
foreign, is required for the valid authorization, execution,
delivery and performance by the Purchaser of this Agreement or
the consummation by the Purchaser of the transactions
contemplated by this Agreement.
5. Section 5.4 of the Agreement shall be deleted in its entirety and
replaced with the following:
5.4 QUALIFICATION OF PURCHASER. The state in which the
Purchaser's principal office is located is set forth on Schedule
A. The Purchaser qualifies as an accredited investor within the
meaning of Rule 501 under the Securities Act. The Purchaser has
such knowledge and experience in financial and business matters
that the Purchaser is capable of evaluating the merits and risks
of the investment to be made hereunder by the Purchaser. The
Purchaser has received and reviewed this Agreement and all other
documents and materials the Company has provided to it in
connection with the purchase of the Available Shares. The
Purchaser has had access to and an opportunity to review all
documents and other materials requested of the Company and has
been given an opportunity to ask such questions of the Company
concerning the terms and conditions of the sale of the Available
Shares and the business, operations, financial condition,
prospects, assets and liabilities of the Company and other
relevant matters as it has deemed necessary or desirable and has
been given all such information as it has requested, to evaluate
the merits and risks of the investment contemplated herein. The
Purchaser understands that the Available Shares being purchased
hereunder have not been registered under the Securities Act or
registered or qualified under any state securities laws on the
grounds that such Available Shares are being issued in a
transaction exempt from the registration requirements of the
Securities Act and the registration or qualification requirements
of applicable state securities laws, and that such Available
Shares must be held indefinitely unless such Available Shares are
subsequently registered under the Securities
Act and qualified or registered under applicable state securities
laws or an exemption from registration and qualification is
available, and that the Company is under no obligation to
register or qualify the Available Shares except as contemplated
by the Registration Rights Agreement. The Purchaser has not seen
or received and is not acquiring the Available Shares purchased
hereunder pursuant to any advertisement with respect to the sale
of the Available Shares.
6. Section 10.1(b) of the Agreement shall be deleted in its entirety
and replaced with the following:
(b) by either the Company or Purchaser if (i) any governmental
entity of competent jurisdiction shall have issued a final
nonappealable order enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement;
(ii) the shareholders of the Company have not approved the
Restatement; (iii) the transactions contemplated hereunder have
not been consummated on or before June 30, 1997, unless the
failure of consummation shall be due to failure of the party
seeking to terminate, to perform or observe in all material
respects the covenants and agreements hereunder to be performed
or observed by such party; or (iv) there shall have been an
inaccuracy in any of the representations or warranties on the
part of the other party or material breach of any covenant or
agreement set forth in this Agreement on the part of the other
party, which breach shall not have been cured within twenty (20)
business days following receipt by the breaching party of written
notice of such breach from the other party;
7. Section 13.9 of the Agreement is hereby deleted in its entirety.
8. Each of the Company, Purchaser and Xxxxxxx hereby represent and
warrant to the other that: (i) it or he, as the case may be, has all requisite
power, authority and legal capacity to execute and deliver this First Amendment;
(ii) the execution and delivery of this First Amendment has been duly and
validly authorized by it, if applicable, and no other corporate proceedings on
its part will be necessary to authorize this First Amendment; and (iii) assuming
the due authorization, execution and delivery by the other parties hereto, this
First Amendment constitutes its or his, as the case may be, legal, valid and
binding obligation, enforceable against it or him, as the case may be, in
accordance with its terms, except as such enforceability may be limited by ERISA
or the Code or by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general principals of
equity.
9. Except as expressly amended hereby, the Agreement shall remain in
full force and effect from and after the execution of this First Amendment.
10. This First Amendment shall be governed by and construed in
accordance with the laws of the State of California.
11. This First Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(Signature page follows)
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
Purchaser, Xxxxxxx and the Company has signed or caused to be signed its or his
(as the case may be) name as of the day and year first above written.
NATIONAL MERCANTILE BANCORP
By:___________________________________
Name:
Title:
WILDWOOD ENTERPRISES INC.
PROFIT SHARING PLAN AND TRUST
By:___________________________________
Name:
Title:
XXXXXX XXXXXXX
___________________________
