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EXHIBIT 10.8
FIRST AMENDMENT TO LOAN AGREEMENT
This FIRST AMENDMENT TO LOAN AGREEMENT ("First Amendment")
made as of the ___ day of May, 1996, between SOUTHERN ARIZONA BANCORP, INC., an
Arizona corporation ("Borrower") and ZIONS BANCORPORATION, a Utah corporation
("Lender").
WHEREAS, Borrower and Lender (collectively, the "Parties")
entered into a Loan Agreement dated as of April 23, 1996 (the "Loan Agreement")
pursuant to which the Parties agreed that, upon satisfaction of certain
conditions established therein, Lender will advance to Borrower or its order the
Loan Amount (as defined therein) on the Closing Date (as defined therein);
WHEREAS, the Parties have determined that it would be
advantageous to effect the disbursement of the Loan Amount on a date preceding
the Closing Date (subject to the satisfaction of the conditions thereto set
forth in the Loan Agreement).
NOW, THEREFORE, in consideration of these premises and the
mutual agreements hereinafter set forth and those set forth in the Loan
Agreement, the Parties agree to amend the Loan Agreement in the manner set forth
below.
A. Page 3 of the Loan Agreement is amended by replacing the
definition of "Calculation Date" set forth therein with that set forth below:
Calculation Date means May 21, 1996.
B. Page 6 of the Loan Agreement is amended by inserting
between the definitions of "Consolidated Tangible Net Worth" and "Discharge
Certification," the following definition:
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Disbursement Date means May 24, 1996.
C. Section 4.1 of the Loan Agreement, "Execution and
Delivery of the Closing Certificate and Promissory Note," is amended to read as
follows:
4.1. Execution and Delivery of Closing Certificate
and Promissory Note. On the Disbursement Date, Borrower shall
complete, execute and deliver to Lender the Closing
Certificate in the form set forth as Exhibit C and the
Promissory Note in the form set forth as Exhibit D hereto. The
principal amount of the Promissory Note shall consist of: (i)
the aggregate principal amount of the Senior Notes as of the
Closing Date; (ii) any accrued but unpaid interest on the
Senior Notes as of the Closing Date; and (iii) any additional
amount due and owing from Borrower as of the Closing Date
pursuant to the Senior Notes and the Loan and Agency Agreement
but shall not include any amount paid by Borrower to Senior
Note Holders pursuant to Section 4.2 of the Note and Agency
Agreement. The Closing Certificate and the Promissory Note
shall be dated as of the Disbursement Date.
D. Section 4.2 of the Loan Agreement, "Disbursement of Loan
Amount," is amended to read as follows:
4.2 Disbursement of Loan Amount. On the Disbursement
Date, following completion by Borrower of the actions
described in Section 4.1 hereof, Lender shall disburse the
Loan Amount to Borrower or to the order of Borrower.
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E. Article 5 of the Loan Agreement, "Prepayment of Senior
Notes and Discharge of Note and Agency Agreement," is amended to read as
follows:
5. PREPAYMENT OF SENIOR NOTES AND DISCHARGE OF
NOTE AND AGENCY AGREEMENT.
On the Disbursement Date, following
completion by Lender of the actions described in Section 4.2
hereof, Borrower shall take all actions required to be taken
by it pursuant to Section 12.1 of the Note and Agency
Agreement to (i) prepay and satisfy its obligations under the
Senior Notes and Note and Agency Agreement for interest,
principal, premiums and all other amounts that will be due and
owing as of the Closing Date and (ii) release Borrower from
any continuing obligation under the Note and Agency Agreement
from and after the Closing Date. Upon the completion by
Borrower of the actions contemplated in clauses (i) and (ii)
above, Borrower shall promptly furnish to Lender the Discharge
Statement, certified by its President and Chief Executive
Officer and by an appropriate official of Agent, in the form
set forth in Exhibit E hereto.
F. Section 8.2 of the Loan Agreement, "Binding Obligations;
Due Authorization," shall be amended to read as follows:
8.2 Binding Obligations; Due Authorization. Upon the
authorization of this Agreement by the Board of Directors of
Borrower, this Agreement will constitute the valid, legal, and
binding obligation of Borrower,
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enforceable against it in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy,
insolvency, moratorium or similar law, or by general
principles of equity. The execution, delivery, and performance
of this Agreement and the transactions contemplated hereby
will have been duly and validly authorized by the Board of
Directors of Borrower prior to the Disbursement Date. No other
corporate proceedings on the part of Borrower are necessary to
authorize the execution and delivery of this Agreement or the
carrying out of the transactions contemplated hereby.
G. Section 9.1 of the Loan Agreement, "Maintenance of Office;
Operation of Business," shall be amended so that the first four lines thereof
shall read as follows:
9.1 Maintenance of Office; Operation of
Business. Borrower covenants and agrees that from and after
the Disbursement Date and continuing so long as any amount
remains unpaid on the Promissory Note or hereunder, it
will:....
H. Section 9.2 of the Loan Agreement, "Negative Covenants," shall
be amended so that the first four lines thereof shall read as follows:
9.2 Negative Covenants. Borrower covenants and
agrees that from and after the Disbursement Date and
continuing so long as any amount remains unpaid on the
Promissory Note or hereunder, it will not:....
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I. Exhibit B to the Loan Agreement, "Cover Letter to
Prepayment Statement," is amended so that it shall be dated as of
May 21, 1996, instead of May 23, 1996.
J. Exhibit C to the Loan Agreement, "Closing Certificate,"
is amended so that the last paragraph thereof shall read as follows:
IN WITNESS WHEREOF the undersigned officer of the
Company has hereunto set his hand this 24th day of May, 1996.
K. Exhibit D to the Loan Agreement, "Southern Arizona Bancorp,
Inc. 8.75 Percent Non-Negotiable Senior Note Due July 1, 2000," is amended so
that:
(i) it shall be dated as of May 24, 1996, instead of May 27, 1996;
and
(ii) the first full paragraph thereof shall read as follows:
SOUTHERN ARIZONA BANCORP., INC., an Arizona
corporation ("Company") promises to pay to ZIONS
BANCORPORATION, a Utah corporation ("Holder"), the principal
sum of ______________ Dollars ($_________) and to pay interest
(computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining
unpaid hereon, at the rate of 8.75 percent per annum from May
27, 1996 until the Maturity Date, payable semiannually on the
first of each January and July in each year commencing July 1,
1996 and at the Maturity Date at the office or agency of
Company in Yuma, Arizona, in such currency of the United
States of America
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as at the time of payment shall be legal tender for payment of
public and private debt. Company shall pay interest on overdue
principal (including any overdue required prepayment of
principal) and premium, if any, and (to the extent legally
enforceable) on any overdue installment of interest at the
rate of 12 percent per annum after maturity whether by
acceleration or otherwise, until paid. If any amount of
principal or interest on or in respect of this Note becomes
due and payable on any date which is not a Business Day, such
amount shall be payable on the next preceding Business Day.
L. This First Amendment may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
Parties. It shall not be necessary in making proof of this First Amendment or
any counterpart hereof to produce or account for the other counterpart.
M. This First Amendment shall be governed by, construed, and
enforced in accordance with the laws of the State of Utah, without giving effect
to the principles of conflict of law thereof. The parties hereby designate Salt
Lake County, Utah, and Yuma County, Arizona, to be the proper jurisdictions and
venue for any suit or action arising out of this First Amendment. Each of the
parties consents to personal jurisdiction in each of such venues for any suit or
action with respect to this First Amendment and agrees that
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it may be served with process in any action with respect to this First Amendment
or the transactions contemplated hereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
State of Utah or Arizona. Each of the parties irrevocably and unconditionally
waives and agrees, to the fullest extent permitted by law, not to plead any
objection that it may now or hereafter have to the laying of venue or the
convenience of the forum of any action or claim with respect to this First
Amendment or the transactions contemplated hereby brought in the courts
aforesaid.
N. This First Amendment shall be binding upon the parties and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first above written.
ZIONS BANCORPORATION
By:
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Harris H. Simmons
President and Chief Executive
Officer
SOUTHERN ARIZONA BANCORP, INC.
By:
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John E. Byrd
President and
Chief Executive Officer
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