Fifth Amendment to Loan Agreement between Summit Bancshares, Inc. and The Frost National Bank (July 15, 2000)

Summary

This amendment updates the loan agreement between Summit Bancshares, Inc. and The Frost National Bank. It renews and extends two credit facilities—a $8 million Acquisition Note and a $1 million Liquidity Note—by one year, allowing Summit Bancshares to continue borrowing under these terms until July 15, 2001. After that date, any outstanding balances convert to term loans, repayable in quarterly installments through July 15, 2006. The amendment is effective once both parties sign and new notes are issued.

EX-10.U 2 0002.txt FIFTH AMENDMENT DATED JULY 15, 2000 EXHIBIT 10(u) FIFTH AMENDMENT TO LOAN AGREEMENT --------------------------------- 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 --------- Amendment to Loan Agreement --------------------------- 1.1 Amendment to Notes. 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 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 ----------------- 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 --------------- 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 ---------- Conditions of Effectiveness --------------------------- 2.1 Effective Date. This Fifth Amendment shall become effective as of --------------- 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 ------------- 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 -------------------------- 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 ----------- Representations and Warranties ------------------------------ 3.1 Representations and Warranties. In order to induce Lender to enter ------------------------------- 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 ---------- Ratification of Obligations and Liens ------------------------------------- 4.1 Ratification of Obligation. The Borrower does here acknowledge, --------------------------- 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 ------------ 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 --------------------------- 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 --------- Miscellaneous ------------- 5.1 Survival of Agreements. All representations, warranties, covenants ----------------------- 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 -------------- 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 -------------- 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 ------------- 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, ------------------ 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, ---------------- 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 ----------------- 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 -------------------------------- Its: Chairman -------------------------------- By: /s/ Bob G. Scott -------------------------------- Its: Executive Vice President -------------------------------- LENDER: THE FROST NATIONAL BANK By: /s/ Jerry L. Crutsinger -------------------------------- Its: Vice President --------------------------------