Exhibit 10.11
SECOND AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT/TERM LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT/TERM
LOAN AGREEMENT ("Amendment") is made and dated as of May 1, 2002, by and between
SUNTRUST BANK, a Georgia banking corporation ("Lender"), and COMMUNITY
BANKSHARES, INC., a Georgia corporation ("Borrower"). Capitalized terms not
otherwise defined herein are defined in ARTICLE I of the Prior Loan Agreement
referred to below.
R E C I T A L S
A. Borrower and Lender are parties to that certain Amended and Restated
Revolving Credit/Term Loan Agreement dated as of July 31, 2000 (the "Prior Loan
Agreement"), pursuant to which Borrower has obtained a Loan from Lender.
B. Borrower and Lender agreed to certain modifications to the Prior
Loan Agreement upon the terms and conditions set forth in that certain Amendment
to Amended and Restated Revolving Credit/Term Loan Agreement dated as of June 8,
2001 ("First Amendment").
C. Borrower desires to make certain further modifications to the Prior
Loan Agreement.
D. In order to accommodate Borrowers' request, Lender has agreed to
such modifications to the Prior Loan Agreement, as amended by the First
Amendment, upon the terms and conditions set forth herein.
ACCORDINGLY, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. The definition of "Revolving Maturity Date" in Section 1.01 "Defined
Terms" of ARTICLE I DEFINITIONS AND ACCOUNTING TERMS of the Prior Loan Agreement
is hereby deleted in its entirety and the following definition is inserted in
its place:
"Revolving Maturity Date" means May 31, 2003.
2. Section 2.01.01 "Revolving Credit Note" of ARTICLE II AMOUNT AND
TERMS OF THE LOAN of the Prior Loan Agreement is hereby amended by replacing the
Replacement Revolving Credit Note attached to and incorporated into the Prior
Loan Agreement as EXHIBIT D thereto with the Replacement Revolving Credit Note
attached hereto as EXHIBIT A and incorporated herein by this reference thereto.
Every reference in the Prior Loan Agreement to the Revolving Credit Note shall
be deemed to refer to the Replacement Revolving Credit Note attached hereto as
EXHIBIT A.
3. Section 7.03 "Return on Assets" of ARTICLE VII FINANCIAL COVENANTS
of the Prior Loan Agreement is hereby deleted in its entirety and the following
new Section is inserted in its place:
SECTION 7.03. RETURN ON ASSETS. Income from
operations after taxes, divided by average assets, on a
consolidated basis shall not be less than: (i) from the
effective date hereof until June 29, 2002, eight-tenths of one
percent (0.80%); and (ii) from June 30, 2002 until the
Revolving Maturity Date, one percent (1.0%).
4. Section 7.04 "Return on Equity" of ARTICLE VII FINANCIAL COVENANTS
of the Prior Loan Agreement is hereby deleted in its entirety and the following
new Section inserted in its place:
SECTION 7.04. RETURN ON EQUITY. Income from
operations after taxes, divided by average equity, on a
consolidated basis shall not be less than: (i) from the
effective date hereof until June 29, 2002, nine percent
(9.0%); and (ii) from June 30, 2002 until the Revolving
Maturity Date, ten percent (10.0%).
5. Section 7.08 "Reserves" of ARTICLE VII FINANCIAL COVENANTS of the
Prior Loan Agreement is hereby deleted in its entirety and the following Section
is inserted in its place:
SECTION 7.08. RESERVES. Each Bank shall maintain at
all times reserves equal to the greater of: (i) one and
thirty-five one hundredths percent (1.35%) of total loans;
(ii) (a) from the effective date hereof until June 29, 2002,
one hundred five percent (105%) of total Non-Performing
Assets, (b) from June 30, 2002 until December 30, 2002, one
hundred twenty-five percent (125%) of total Non-Performing
Assets, and (c) from December 31, 2002 until the Revolving
Maturity Date, one hundred fifty percent (150%) of total
Non-Performing Assets; and (iii) the minimum amount required
by its primary regulator.
6. Section 7.09 "Asset Quality" of ARTICLE VII FINANCIAL COVENANTS of
the Prior Loan Agreement is hereby deleted in its entirety and the following
Section is inserted in its place:
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SECTION 7.09. ASSET QUALITY. The ratio of loans
ninety (90) days past due + non accrual loans plus other real
estate owned divided by net loans plus other real estate owned
for each Bank shall not exceed: (i) from the effective date
hereof until December 30, 2002, two and two tenths percent
(2.2%); and (ii) from December 31, 2002 until the Revolving
Maturity Date, two percent (2.0%), except for Community Bank
and Trust--Xxxxx, which shall not exceed (i) from the
effective date hereof until December 30, 2002, three and
four-tenths percent (3.4%); and (ii) from December 31, 2002
until the Revolving Maturity Date, two percent (2.0%).
7. Section 7.10 "Consolidated Tangible Equity" of ARTICLE VII FINANCIAL
COVENANTS of the Prior Loan Agreement is hereby deleted in its entirety and the
following section is inserted in its place:
SECTION 7.10 CONSOLIDATED TANGIBLE EQUITY.
Consolidated Tangible Equity for Borrower and its Subsidiaries
shall be greater than or equal to $53,000,000.00, which amount
shall be increased by an additional amount of at least eight
percent (8%) per year thereafter during the term hereof. For
purposes of this Agreement, Tangible Equity shall mean equity
minus intangibles.
8. ACKNOWLEDGMENT OF OUTSTANDING LOANS. Borrower hereby acknowledges,
certifies and agrees that pursuant to the Prior Loan Agreement, Borrower's
obligation to pay the outstanding Loan is not subject to any defense, claim,
counterclaim, setoff, right of recoupment, abatement or other determination; and
the Loan is and shall continue to be governed and secured by the terms and
provisions of the Prior Loan Agreement as amended by the First Amendment and
this Amendment.
9. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies and affirms
each of the Loan Documents in their entirety, and acknowledges and agrees that
(i) the Loan Documents are in full force and effect, (ii) all representations
and warranties contained therein are true and correct on and as of the date
hereof, (iii) Borrower is in full compliance with all covenants and agreements
established thereunder, (iv) no Event of Default exists thereunder and (v) the
Loan Documents are legal, valid and binding obligations of Borrower and are
enforceable by Lender, against Borrower in accordance with their respective
terms.
10. COUNTERPARTS. This Amendment may be signed in one or more
counterpart copies, each of which constitutes an original, but all of which,
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when taken together, shall constitute one agreement binding upon all of the
parties hereto.
11. GOVERNING LAW, ETC. This Amendment shall be governed by and construed in
accordance with the applicable terms and provisions of ARTICLE IX MISCELLANEOUS
of the Prior Loan Agreement, which terms and provisions are incorporated herein
by reference.
12. NO OTHER MODIFICATIONS. Except as hereby amended, no other term, condition
or provision of the Prior Loan Agreement shall be deemed modified or amended,
and this Amendment shall not be considered a novation.
IN WITNESS WHEREOF, the parties have executed and delivered
this Amendment under seal as of the date first above written.
BORROWER:
COMMUNITY BANKSHARES, INC.
By: _____________________________________
Title:__________________________
And: ____________________________________
Title:__________________________
LENDER:
SUNTRUST BANK, a Georgia banking corporation
By:______________________________________
Title:__________________________
And:_____________________________________
Title:__________________________
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EXHIBIT A
REPLACEMENT
REVOLVING CREDIT NOTE
$1,000,000.00 May 1, 0000
Xxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, the undersigned, COMMUNITY BANKSHARES, INC., a
Georgia corporation (the "Borrower"), hereby promises to pay to the order of
SUNTRUST BANK, a Georgia banking corporation (the "Bank"), at its Principal
Office located at 00 Xxxx Xxxxx, Xxxxxxx, Xxxxxxx, the principal amount of ONE
MILLION AND NO/100THS DOLLARS ($1,000,000.00) or so much thereof as may be from
time to time disbursed hereunder, in lawful money of the United States and in
immediately available funds. This Note is executed and delivered as a renewal of
the Revolving Credit under the Loan Agreement hereinafter defined and shall
renew, modify and replace that certain Replacement Revolving Credit Note in the
maximum principal amount of $1,000,000.00 by and between Borrower and Bank dated
June 8, 2001. Upon execution and delivery of this Note by Borrower to Lender,
this Note shall evidence Borrower's obligation to Lender in regard to the
Revolving Credit.
Prior to the Revolving Maturity Date, the Borrower may request
Advances to be made pursuant to this Note and repay such Advances in accordance
with the Amended and Restated Revolving Credit/Term Loan Agreement dated as of
July 31, 2000 between Borrower and Bank (as modified, amended, supplemented or
restated from time to time, the "Prior Loan Agreement"). Interest shall accrue
and be paid upon such Advances in accordance with the Prior Loan Agreement.
Accrued but unpaid interest shall be payable on the last day of each consecutive
three month period commencing July 31, 2002 and on the Revolving Maturity Date.
The entire principal balance shall be due and payable on the Revolving Maturity
Date.
Any amount of principal hereof which is not paid when due (giving
effect to any applicable grace period), whether at stated maturity, by
acceleration, or otherwise, shall bear interest from the date when due until
said principal amount is paid in full, payable on demand, at a rate per annum
equal at all times to two percent (2%) above the rate which would otherwise be
applicable. Any change in the interest rate resulting from a change in the Prime
Rate shall be effective at the beginning of the day on which such change in the
Prime Rate shall become effective.
If any payment under this Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
The Prior Loan Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events. This Note is secured by a Security Agreement referred to in the
Prior Loan Agreement, reference to which is hereby made for a description of the
collateral provided for under the Security Agreement and the rights of the
Borrower and the Bank with respect to such collateral.
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In addition to and not in limitation of the foregoing and the
provisions of the Prior Loan Agreement, the Borrower further agrees to pay all
expenses of collection, including reasonable attorneys' fees, if this Note shall
be collected by law or through an attorney at law, or in bankruptcy,
receivership, or other court proceedings.
This Note renews and replaces the Revolving Credit Note referred to
in the Prior Loan Agreement. Reference is hereby made to the Prior Loan
Agreement for rights and obligations of payment and prepayment, collateral
security, Events of Default and the rights of acceleration of the maturity
thereof. Any capitalized terms not otherwise defined herein are used with the
meaning given such terms in the Prior Loan Agreement.
TIME IS OF THE ESSENCE UNDER THIS NOTE. This Note has been delivered
in Atlanta, Georgia, and shall be governed by and construed under the laws of
Georgia.
PRESENTMENT, PROTEST, AND NOTICE OF DISHONOR ARE HEREBY WAIVED BY
THE BORROWER.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal and delivered by its duly authorized officer as of the date first
above written.
COMMUNITY BANKSHARES, INC.
By: ___________________________________
Title: _______________________
And: __________________________________
Title: _______________________
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