EXHIBIT 10(s)
FIRST AMENDMENT TO LOAN AGREEMENT
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THIS FIRST AMENDMENT ("First Amendment") dated as of the 15th day of July,
1996, to the Loan Agreement (the "Loan Agreement"), made and entered into as of
July 12, 1995, by and among SUMMIT BANCSHARES, INC., a Texas corporation,
(hereinafter called "Borrower") and THE FROST NATIONAL BANK, a national banking
association (hereinafter called "Lender"). All capitalized terms not otherwise
defined herein shall have the meaning ascribed to each of them in the Loan
Agreement.
W I T N E S S E T H:
WHEREAS, Borrower executed the Loan Agreement to govern those two certain
promissory notes from Lender, specifically, a $8,000,000.00 Acquisition Note and
a $1,000,000.00 Liquidity Note (collectively, the "Notes").
WHEREAS, the Borrower desires to renew and extend the unpaid principal
balance of the Notes; and
WHEREAS, the Lender agrees to renew and extend the Notes all as hereinafter
provided.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender do hereby agree as follows:
ARTICLE I
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AMENDMENT TO LOAN AGREEMENT
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As of the effective date hereof, the Borrower has zero outstanding under
the Acquisition Note and the Liquidity Note. The Borrower desires to renew
these credit facilities by the execution of another Acquisition Note and
Liquidity Note extending the original payment terms and the maturity date of one
year. Accordingly, Sections 2.02(a) and (b) of the Loan Agreement shall be, and
are hereby, amended to read in their entirety as follows:
(a) Acquisition Note. From Closing Date and continuing at all times
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through July 15, 1997 (the "Revolving Credit Period") the Loan evidenced by
the Acquisition Note shall be a revolving credit facility which will allow
the Borrower to request such amounts as Borrower may elect from time to
time (each such amount being herein called an "Advance") so long as the
aggregate amount of Advances outstanding at any time under the Acquisition
Note does not exceed Eight Million and NO/100 Dollars ($8,000,000.00)
provided however,
FIRST AMENDMENT TO LOAN AGREEMENT - Page 1
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the minimum Advance must be at least $500,000.00. The Borrower shall have
the right to borrow, repay, and borrow again under the credit facility
during the Revolving Credit Period. The outstanding principal balance of
the Acquisition Note on July 15, 1997 shall convert to a term facility (the
"Term Period") and shall be payable in 20 equal quarterly installments of
principal plus all accrued and unpaid interest, with all unpaid principal
plus all accrued and unpaid interest being due and payable on July 15,
2002. Principal and interest of the Acquisition Note shall be due and
payable as provided in the Acquisition Note. The Borrower's right to
request advances and the Lender's obligation to make advances under the
Acquisition Note shall terminate at 2:00 p.m. on July 15, 1997.
(b) Liquidity Note. The Liquidity Note shall be due and payable as
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follows: during the Revolving Credit Period the Loan evidenced by the
Liquidity Note shall be a revolving credit facility which will allow the
Borrower to request such amounts as Borrower may elect from time to time
(each such amount being herein called an "Advance") so long as the
aggregate amount of Advances outstanding at any time under the Liquidity
Note does not exceed One Million and NO/100 Dollars ($1,000,000.00)
provided however, the minimum Advance must be at least $50,000.00. The
Borrower shall have the right to borrow, repay, and borrow again under the
credit facility during the Revolving Credit Period. The outstanding
principal balance of the Liquidity Note on July 15, 1997 shall convert to a
term facility (the "Term Period") and shall be payable in 20 equal
quarterly installments of principal plus all accrued and unpaid interest
being due and payable on July 15, 2002. Principal and interest of the
Liquidity Note shall be due and payable as provided in the Liquidity Note.
The Borrower's right to request advances and the Lender's obligation to
make advances under the Liquidity Note shall terminate at 2:00 p.m. on July
15, 1997.
ARTICLE II
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CONDITIONS OF EFFECTIVENESS
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2.1 Effective Date. This First Amendment shall become effective as of
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July 15, 1996, when, and only when, Lender shall have received counterparts of
this First Amendment executed and delivered by Borrower and when each of the
following conditions shall have been met, all in form, substance, and date
satisfactory to Lender:
(a) Renewal Notes. Borrower shall have executed and delivered to
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Lender a new Acquisition Note and Liquidity Note, payable to the order of
Lender as set forth therein, duly executed on behalf of the Borrower, dated
effective July 15, 1996 in the principal amounts of $8,000,000.00 and
$1,000,000.00, respectively.
FIRST AMENDMENT TO LOAN AGREEMENT - Page 2
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(b) Additional Loan Documents. Borrower shall have executed and
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delivered to Lender such other documents as shall have been requested by
Lender to renew, and extend, the Loan Documents to secure payment of the
Obligations of Borrower, all in form satisfactory to Lender and its
counsel.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES
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3.1 Representations and Warranties. In order to induce Lender to enter
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into this First Amendment, Borrower represents and warrants the following:
(a) Borrower has the corporate power to execute and deliver this
First Amendment, the Notes, and other Loan Documents and to perform all of
its obligations in connection herewith and therewith.
(b) The execution and delivery by Borrower of this First Amendment,
the Notes, and other Loan Documents and the performance of its obligations
in connection herewith and therewith: (i) have been duly authorized or will
be duly ratified and affirmed by all requisite corporate action; (ii) will
not violate any provision of law, any order of any court or agency of
government or the Articles of Incorporation or Bylaws of such entity; (iii)
will not be in conflict with, result in a breach of or constitute (alone or
with due notice or lapse of time or both) a default under any indenture,
agreement or other instrument; and (iv) will not require any registration
with, consent or approval of or other action by any federal, state,
provincial or other governmental authority or regulatory body.
(c) There is no action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or other agency or regulatory
authority now pending or, to the knowledge of Borrower, threatened against
or affecting Borrower or any properties or rights of Borrower or involving
this First Amendment or the transactions contemplated hereby which, if
adversely determined, would materially impair the right of Borrower, to
carry on business substantially as now conducted and adversely affect the
ability of Borrower to consummate the transactions contemplated by this
First Amendment.
(d) The representations and warranties of Borrower contained in the
Loan Agreement, this First Amendment, the Notes, and any other Loan
Document securing Borrower's Obligations and indebtedness to Lender are
correct and accurate on and as of the date hereof as though made on and as
of the date hereof, except to the extent that the facts upon which such
representations are based have been changed by the transactions herein
contemplated.
FIRST AMENDMENT TO LOAN AGREEMENT - Page 3
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ARTICLE IV
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RATIFICATION OF OBLIGATIONS AND LIENS
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4.1 Ratification and Obligation. The Borrower does here acknowledge,
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ratify and confirm that it is obligated and indebted to Lender as evidenced by
the Loan Agreement (as amended by this First Amendment), the Notes and all other
Loan Documents.
4.2 Valid Liens. Borrower hereby acknowledges and agrees that the liens
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and security interests of the Loan Documents are valid and subsisting liens and
security interests and are superior to all liens and security interests other
than those exceptions approved by Lender in writing. Nothing herein contained
shall affect or impair the validity or priority of the liens and security
interests under the Loan Documents.
4.3 Ratification of Agreements. The Loan Agreement, this First Amendment,
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the Notes, and each other Documents, as hereby amended, is acknowledged,
ratified and confirmed in all respects as being valid, existing, and of full
force and effect. Any reference to the Loan Agreement in any Loan Document
shall be deemed to be a reference to the Loan Agreement as amended by this First
Amendment. The execution, delivery and effectiveness of this First Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of lender under the Loan Agreement, nor constitute a
waiver of any provision of the Loan Agreement. The Borrower acknowledges,
ratifies and confirms that the collateral securing the loan secures all of the
indebtedness of the Borrower, including without limitation, the Notes.
ARTICLE V
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MISCELLANEOUS
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5.1 Survival of Agreements. All representations, warranties, covenants
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and agreements of Borrower, herein or in any other Loan Document shall survive
the execution and delivery of this First Amendment, and the other Loan Documents
and the performance hereof and thereof, including without limitation the making
or granting of the Loan and the delivery of the Notes and all other Loan
Documents, and shall further survive until all of Borrower's Obligations to
Lender are paid in full. All statements and agreements contained in any
certificate or instrument delivered by Borrower hereunder or under the Loan
Documents to Lender shall be deemed to constitute the respective representations
and warranties by Borrower and/or respective agreements and covenants of
Borrower under this First Amendment and under the Loan Agreement.
5.2 Loan Documents. This First Amendment, the Notes, and each other Loan
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Documents executed in connection herewith are each a Loan Documents and all
provisions in the Loan Agreement, as amended, pertaining to Loan Documents apply
hereto and thereto.
FIRST AMENDMENT TO LOAN AGREEMENT - Page 4
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5.3 Governing Law. This First Amendment shall be governed by and
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construed in all respects in accordance with the laws of the State of Texas and
any applicable laws of the United States of America, including construction,
validity and performance.
5.4 Counterparts. This First Amendment may be separately executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the same
First Amendment.
5.5 Release of Claims. Borrower by its execution of this First Amendment,
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hereby declares that it has no set-offs, counterclaims, defenses or other causes
of action against Lender arising out of the Loan, the renewal, modification and
extension of the Loan, any documents mentioned herein or otherwise; and, to the
extent any such setoffs, counterclaims, defenses or other causes of action which
may exist, whether known or unknown, such items are hereby expressly waived and
released by Borrower.
5.6 Attorney's Fees. Borrower hereby agrees to pay to Lender, upon
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demand, the reasonable attorney's fees and expenses of Lender's counsel, filing
and recording fees and other reasonable expenses incurred by Lender in
connection with this First Amendment. Borrower also agrees to provide to Lender
such other documents and instruments as Lender may reasonably request in
connection with the renewal, extension and modification of the Loans mentioned
herein.
5.7 ENTIRE AGREEMENT. THE FIRST AMENDMENT, TOGETHER WITH ANY LOAN
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DOCUMENTS EXECUTED IN CONNECTION HEREWITH, CONTAINS THE ENTIRE AGREEMENT BETWEEN
THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND ALL
PRIOR AGREEMENTS RELATIVE THERETO WHICH ARE NOT CONTAINED HEREIN OR THEREIN ARE
TERMINATED. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS
FIRST AMENDMENT, AND THE LOAN DOCUMENTS MAY BE AMENDED, REVISED, WAIVED,
DISCHARGED, RELEASED OR TERMINATED ONLY BY A WRITTEN INSTRUMENT OR INSTRUMENTS,
EXECUTED BY THE PARTY AGAINST WHICH ENFORCEMENT OF THE AMENDMENT, REVISION,
WAIVER, DISCHARGE, RELEASE OR TERMINATION IS ASSERTED. ANY ALLEGED AMENDMENT,
REVISION, WAIVER, DISCHARGE, RELEASE OF TERMINATION WHICH IS NOT SO DOCUMENTED
SHALL NOT BE EFFECTIVE AS TO ANY PARTY.
FIRST AMENDMENT TO LOAN AGREEMENT - Page 5
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IN WITNESS WHEREOF, this First Amendment is executed effective as of the
date first written above.
BORROWER: SUMMIT BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Its: President
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By: /s/ Xxx X. Xxxxx
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Its: Senior Vice President
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LENDER: THE FROST NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxxxx
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Its: Vice President
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FIRST AMENDMENT TO LOAN AGREEMENT - Page 6
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