EXHIBIT 10(u)
FIFTH AMENDMENT TO LOAN AGREEMENT
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THIS FIFTH AMENDMENT ("Fifth Amendment") dated as of the 15th day of July,
2000 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.
WITNESSETH:
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, Borrower executed the First Amendment to Loan Agreement on July
15, 1996 ("First Amendment") which renewed and extended the maturity date of the
Notes: and
WHEREAS, Borrower executed the Second Amendment to Loan Agreement on July
15, 1997 ("Second Amendment") which renewed and extended the maturity date of
the Notes; and
WHEREAS, Borrower executed the Third Amendment to Loan Agreement on July
15, 1998 ("Third Amendment") which renewed and extended the maturity date of the
Notes; and
WHEREAS, Borrower executed the Fourth Amendment to Loan Agreement on July
15, 1999 ("Fourth Amendment") which renewed and extended the maturity date of
the Notes; and
WHEREAS, the Borrower desires to again 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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1.1 Amendment to Notes. As of the effective date hereof, the Borrower has
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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 by 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:
2.02 (a) Acquisition Note. From Closing Date and continuing at all
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times through July 15, 2001 ( 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, the minimum Advance must be at least
$500,000.00. Prior to July 15, 2001, the Borrower shall have the right to
borrow, repay, and borrow again under the credit facility. The outstanding
principal balance of the Acquisition Note n July 15, 2001 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, 2006. Principal and interest of the Acquisition
Note shall be due and payable as provided in the Acquisition Note.
(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. Prior
to July 15, 2001, the Borrower shall have the right to borrow, repay and
borrow again under the credit facility. The outstanding principal balance
of the Liquidity Note on July 15, 2001 shall convert to a term facility 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, 2006. Principal and
interest of the Liquidity Note shall be due and payable as provided in the
Liquidity Note.
ARTICLE II
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Conditions of Effectiveness
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2.1 Effective Date. This Fifth Amendment shall become effective as of
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July 15, 2000, when, and only when, Lender shall have received counterparts of
this Fifth 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 new Liquidity Note, each
payable to the order of Lender as set forth therein, each duly
executed on behalf of the Borrower, dated effective July 15, 2000
in the principal amounts of $8,000,000.00 and $1,000,000.00,
respectively.
(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 Fifth Amendment, Borrower represents and warrants the following:
(a) Borrower has the corporate power to execute and deliver this
Fifth 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 Fifth 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 Fifth
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 or
materially and adversely affect the financial condition of
Borrower or materially and adversely affect the ability of
Borrower to consummate the transactions contemplated by this
Fifth Amendment.
(d) The representations and warranties of Borrower contained in the
Loan Agreement, this Fifth 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.
ARTICLE IV
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Ratification of Obligations and Liens
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4.1 Ratification of 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 the First Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment and this Fifth 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 (as previously amended
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by the First Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment), this Fifth Amendment, the Notes, and each other Loan Document, 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 previously amended) and as amended by this Fifth Amendment. The
execution, delivery and effectiveness of this Fifth 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 Fifth 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 Fifth Amendment and under the Loan Agreement.
5.2 Loan Document. This Fifth Amendment, the Notes, and each other Loan
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Documents executed in connections herewith are each a Loan Document and all
provisions in the Loan Agreement, as amended, pertaining to Loan Documents apply
hereto and thereto.
5.3 Governing Law. This Fifth 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 Fifth 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
Fifth Amendment.
5.5 Release of Claims. Borrower by its execution of this Fifth 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 Attorneys' Fees. Borrower hereby agrees to pay Lender, upon demand,
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the reasonable attorneys' fees and expenses of Lender's counsel, filing and
recording fees and other reasonable expenses incurred by Lender in connection
with this Fifth 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. THIS FIFTH 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
FIFTH AMENDMENT, AND THE LOAN DOCUMENTS MAY BE AMENDED, REVISED, WAIVED,
DISCHARGED, RELEASED OR TERMINATED ONLY BY A WRITTEN INSTRUMENT OR INSTRUCTIONS,
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 OR TERMINATION WHICH IS NOT SO DOCUMENTED
SHALL NOT BE EFFECTIVE AS TO ANY PARTY.
IN WITNESS WHEREOF, this Fifth Amendment is executed effective as of the
date first written above.
BORROWER: SUMMIT BANCSHARES, INC.
By: /s/ Philip E. Norwood
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Its: Chairman
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By: /s/ Bob G. Scott
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Its: Executive Vice President
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LENDER: THE FROST NATIONAL BANK
By: /s/ Jerry L. Crutsinger
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Its: Vice President
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