EXHIBIT 10.21
LOAN
AGREEMENT
THIS LOAN AGREEMENT
(hereinafter called this
“Agreement”) is made and entered into this 30th day of
November, 2006 by and between WILSHIRE ACQUISITIONS
CORPORATION , a Nevada corporation (hereinafter called
“Borrower”), BEVERLY HILLS BANCORP INC. , a
Delaware corporation, (hereinafter called “Guarantor”)
and FIRST TENNESSEE BANK NATIONAL ASSOCIATION , a national
banking association having its principal office located in Memphis,
Tennessee (“Lender”).
W I T N E S S E T H
:
WHEREAS, Borrower desires to borrow
from Lender up to Twenty Million Dollars ($20,000,000.00)
from time to time outstanding pursuant to a revolving line of
credit;
WHEREAS, Borrower is an indirect
wholly owned subsidiary of Guarantor
NOW, THEREFORE, in consideration of
the premises and the mutual agreements, covenants and conditions
herein contained, the parties hereto hereby agree as
follows:
AGREEMENTS
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1.
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COMMITMENT
AND FUNDING .
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1.1 The Commitment. Subject
to the terms and conditions herein set out, Lender agrees and
commits to provide a revolving line of credit (the
“Loan”) to Borrower for up to Twenty Million
Dollars ($20,000,000.00) outstanding from time to time. Such
borrowing shall be evidenced by, and shall be payable in accordance
with the terms and provisions of, a promissory note executed by
Borrower, as maker, attached hereto and incorporated herein by
reference (such promissory note together with any renewals,
modifications and extensions thereof is herein referred to as the
“Note”).
1.2 Funding . The advance of
Loan proceeds hereunder shall be made, upon Borrower’s
request, by depositing the same into a demand deposit account with
Lender or wiring of funds per specific instructions of Borrower.
The Loan to Borrower may be made, at Borrower’s request, in
one or more advances, each of which shall be subject to the terms
and conditions of this Agreement, including but not limited to
Sections 2.1 and 2.2 hereof.
1.3 Application of Payments;
Prepayments . All payments will be applied first to accrued and
unpaid interest, then to principal. Borrower may, at its option, at
any time and from time to time, without prepayment penalty or
premium, prepay the Loan in whole or in part. Early payments will
not, unless agreed to by Lender in writing, relieve Borrower of
Borrower’s obligation to continue to make payments of accrued
and unpaid interest.
1.4 Interest Rate . The Loan
indebtedness evidenced by the Note shall bear interest from date at
the variable rate determined in accordance with the terms and
provisions of the Note.
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2.
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CONDITIONS
OF LENDING .
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2.1 Loan Documents . The
obligation of Lender to fund the Loan is subject to the condition
precedent that Lender shall have received at or before the
execution of this Agreement all of the following
in form and substance satisfactory to Lender;
provided that if any of the following shall not have been furnished
to Lender at or before the date of this Agreement, the same shall
be furnished promptly thereafter unless Lender shall waive any such
requirement in writing.
(a) The Note;
(b) This Agreement;
(c) Guaranty Agreement between
Lender and Guarantor (the “Guaranty”);
(d) Commercial Pledge Agreement
covering the stock in First Bank of Beverly Hills, a California
state chartered bank (“Bank”), a subsidiary of Borrower
(the “Pledge Agreement”, and together with the Note,
the Guaranty and this Agreement, the “Loan
Documents”);
(e) Current certificate of good
standing for Borrower and Guarantor in the State of
California;
(f) Certified corporate resolutions
of Borrower and Guarantor authorizing the execution, delivery and
performance of the Loan Documents;
(g) A copy of Guarantor’s Form
10-Q for the quarter ended September 30, 2006 and Form 10-K
for the year ended December 31, 2005, it being understood that
Lender is relying upon the audit report of Deloitte &
Touche LLP contained in the Form 10-K in entering into this Loan
Agreement, and Guarantor’s FR Y-9 Parent Company Only
financial statement(s).
(h) The opinion of Borrower’s
independent, third party counsel in the form approved by Lender, as
to the due incorporation and valid existence and good standing of
Borrower, the due authorization and execution by Borrower of the
Loan Documents, the validity and enforceability of the Loan
Documents against Borrower and such other matters as Lender shall
require.
2.2 Other Conditions . The
obligation of Lender to fund the Loan is subject to each of the
following further terms and conditions:
(a) At the time of funding of any
Loan advances hereunder, each of Borrower’s warranties and
representations contained herein shall be and remain true and
correct in all material respects. In addition, no Event of Default
(as defined in Section 6 hereof) shall have occurred and be
continuing, and, if requested by Lender, Borrower shall execute a
certificate verifying each of such matters to be true in all
material respects, if such be the case.
(b) At the time the Loan is closed
hereunder, there shall have occurred, in the reasonable opinion of
Lender, no material adverse changes in the condition, financial or
otherwise, of Borrower or the Bank from the condition reflected in
the most recent balance sheet included financial statements
furnished pursuant to Section 2.1 hereof.
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3.
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REPRESENTATIONS AND WARRANTIES
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In order to induce the Lender to
enter into this Agreement and to make the Loan, Borrower and
Guarantor represents and warrants to the Lender (which
representations and warranties shall survive the delivery of the
Loan Documents and the funding of the Loan) that:
3.1 Corporate Status .
Borrower is a corporation duly organized and existing under the
laws of the State of Nevada, is duly qualified to do business and
is in good standing under the laws of the State of California, and
has the corporate power and authority to own its properties and
assets and conduct its affairs and business.
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3.2 Corporate Power and
Authority . Borrower has full power and authority to enter into
this Agreement, to borrow funds contemplated herein, to execute and
deliver this Agreement, the Note and the Pledge Agreement (the
“Borrower Loan Documents”) executed and delivered by
it, and to incur the obligations provided for herein, all of which
have been duly authorized by all proper and necessary corporate
action; and the officer executing each of the Borrower Loan
Documents is duly authorized to do so by all necessary corporate
action. Any consents or approvals of shareholders of Borrower
required as a condition to the validity of any Loan Document have
been obtained; and each of the Borrower Loan Documents is the
valid, legal, and binding obligation of Borrower enforceable in
accordance with its terms.
3.3 No Violation of Agreements or
Law . Neither Borrower nor Bank is in default under any
indenture, agreement or instrument to which it is a party or by
which it may be bound, which default would have a material adverse
affect on the financial condition of Borrower and its consolidated
subsidiaries taken as a whole. Neither the execution and delivery
of the Borrower Loan Documents nor the consummation of the
transactions therein contemplated, nor compliance with the
provisions of the Borrower Loan Documents will conflict with, or
result in the breach of, or constitute a default under, any
indenture, agreement or other instrument to which Borrower is a
party or by which it may be bound, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property of Borrower (other than pursuant to the Borrower Loan
Documents), or violate or be in conflict with any provision of the
charter or bylaws of Borrower.
3.4 Compliance With Law;
Government Approvals .
(a) Borrower has complied and is
complying with in all material respects all requirements, made all
applications, and submitted all reports required by The Bank
Holding Company Act of 1956, as amended, and any regulations or
rulings issued in connection therewith, and the transaction
contemplated hereby will not violate any such statutes, rules,
rulings, or regulations nor will the consummation of said actions
and transactions cause Borrower to be in violation thereof.
Borrower has, as required, received all governmental approvals
necessary for the consummation of the transaction contemplated
herein.
(b) Borrower has complied and is
complying with all other applicable state or federal statutes,
rules, rulings and regulations except where the failure to have
complied or be in compliance would not have a material adverse
affect on the financial condition or results of operations of the
Guarantor and its consolidated subsidiaries taken as a whole (a
“Material Adverse Affect”). The borrowing of money as
described herein and said actions and transactions will not violate
any of such statutes, rules, rulings, or regulations.
3.5 Litigation . There are no
actions, suits or proceedings pending or, to the knowledge of the
Borrower threatened against Borrower, Guarantor or Bank before any
court, arbitrator or governmental or administrative body or agency
that, if adversely determined, would result in a Material Adverse
Affect. Without limiting the generality of the foregoing, neither
Borrower, Guarantor nor Bank is subject to any Supervisory Action
(herein defined) by any federal or state bank regulatory authority.
As used herein, “Supervisory Action” shall mean and
include the issuance by any bank regulatory authority of a letter
agreement or memorandum of understanding (regardless of whether
consented or agreed to by the party to whom it is addressed); or
the issuance by or at the behest of any bank regulatory authority
of a cease and desist order, injunction, directive, restraining
order, notice of charges, or civil money penalties, against
Borrower, Guarantor or Bank or the directors or officers of either
of them, whether temporary or permanent.
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3.6 Financial Condition . The
consolidated balance sheets and the related statements of income of
Guarantor, which have been delivered to the Lender pursuant to
Section 2.1 hereof and the consolidated financial statements
of Guarantor which will be delivered to Lender pursuant to
Section 4.5 hereof are, or will be as of their respective
dates and for the respective periods stated therein, complete and
correct and fairly present the financial condition of Guarantor or
Bank, as the case may be, and the results of operations of
Guarantor or Bank, as the case may be, as of the dates and for the
periods stated therein, and have been, or will be as of their
respective dates and for the respective periods stated therein,
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved.
There has been no material adverse change in the business,
properties or financial condition of Guarantor and its consolidated
subsidiaries since the date of the most consolidated financial
statements furnished to Lender pursuant to Section 2.1 or 4.5
hereof except as set forth in Section 2.2(b) or otherwise
disclosed to Lender in writing.
3.7 Tax Liability . Guarantor
and its consolidated subsidiaries have filed all tax returns that
are required to be filed by them, and have paid all taxes which
have become due pursuant to such returns or pursuant to any
assessments received by them except to the extent that Guarantor or
any of its subsidiaries is contesting such taxes or assessments in
good faith by appropriate proceedings.
3.8 Subsidiaries . Guarantor
has separately provided to Lender a true and correct list of the
subsidiaries of Guarantor as of the date of this
Agreement.
4. AFFIRMATIVE COVENANTS .
Guarantor covenants and agrees that, until the Note together with
interest thereon is paid in full, unless specifically waived or
approved by the Lender in writing (which waiver or approval will
not be unreasonably withheld), Guarantor will, and will cause
Borrower and Bank to:
4.1 Business and Existence .
Perform all things necessary to preserve and keep in full force and
effect the existence, rights and franchises of Guarantor and to
comply in all material respects with all laws and regulations
applicable to Guarantor, Borrower and Bank (the “Guarantor
Group”), including, but not limited to, laws and regulations
of state and federal authorities applicable to banks and bank
holding companies.
4.2 Maintain Property .
Maintain, preserve, and protect all properties used or useful in
the conduct of the Guarantor Group’s business and keep the
same in good repair, working order and condition.
4.3 Insurance . At all times
keep the insurable properties of the Guarantor Group adequately
insured and maintain in force (a) insurance, to such an extent
and against such risks, including fire, as is customary with
companies in the same or similar business, (b) necessary
workmen’s compensation insurance, fidelity bonds and
directors’ and officers’ insurance coverage in amounts
reasonably satisfactory to Lender, and (c) such other
insurance as may be required by law; and if required by Lender,
deliver to the Lender a copy of the bonds and policies providing
such coverage and a certificate of Guarantor executed by
Guarantor’s chief executive officer or chief financial
officer, as the case may be, setting forth the nature of the risks
covered by such insurance, the amou