_________________________________________________________________
_________________________________________________________________
AMENDED AND RESTATED REVOLVING CREDIT/TERM LOAN AGREEMENT
By and Between
COMMUNITY BANKSHARES, INC.
and
SUNTRUST BANK, ATLANTA
Dated: July 31, 1998
_________________________________________________________________
_________________________________________________________________
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . 1
Section 1.01. Defined Terms. . . . . . . . . . . . . . . . . . . 1
Section 1.02. Accounting Terms . . . . . . . . . . . . . . . . . 5
ARTICLE II
AMOUNT AND TERMS OF THE LOAN . . . . . . . . . . . . . . . . . 5
Section 2.01. Revolving Credit . . . . . . . . . . . . . . . . . 5
Section 2.01.01 Note . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. Interest on the Revolving Credit . . . . . . . . . 5
Section 2.03. Term Loan. . . . . . . . . . . . . . . . . . . . . 6
Section 2.04. Interest on the Term Loan. . . . . . . . . . . . . 6
Section 2.05. Revolving Credit/Term Note . . . . . . . . . . . . 6
Section 2.06. Method of Payment. . . . . . . . . . . . . . . . . 6
Section 2.07. Use of Proceeds. . . . . . . . . . . . . . . . . . 6
ARTICLE III
ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.01. Advances . . . . . . . . . . . . . . . . . . . . . 7
Section 3.02. Conditions Precedent to Initial Advance. . . . . . 7
Section 3.03. Conditions Precedent to Subsequent
Advances and the Term Loan. . . . . . . . . . . 8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 9
Section 4.01. Incorporation, Good Standing, and Due Qualification 9
Section 4.02. Corporate Power and Authority. . . . . . . . . . . 9
Section 4.03. Legally Enforceable Agreement. . . . . . . . . . . 10
Section 4.04. Financial Statements . . . . . . . . . . . . . . . 10
Section 4.05. Labor Disputes and Acts of God . . . . . . . . . . 10
Section 4.06. Other Agreements . . . . . . . . . . . . . . . . . 10
Section 4.07. Litigation . . . . . . . . . . . . . . . . . . . . 11
Section 4.08. No Defaults on Outstanding Judgments or Orders . . 11
Section 4.09. Ownership and Liens. . . . . . . . . . . . . . . . 11
Section 4.10. Subsidiaries and Ownership of Stock. . . . . . . . 11
Section 4.11. ERISA. . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.12. Operation of Business. . . . . . . . . . . . . . . 12
Section 4.13. Taxes. . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.14. Absence of Undisclosed Liabilities . . . . . . . . 12
Section 4.15. Environment. . . . . . . . . . . . . . . . . . . . 12
Section 4.16. Governmental Approval. . . . . . . . . . . . . . . 13
Section 4.17. Regulatory Compliance and Notice of
Regulatory Action . . . . . . . . . . . . . . . 13
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Section 4.18. Securities Activities. . . . . . . . . . . . . . . 13
Section 4.19. Deposit Insurance. . . . . . . . . . . . . . . . . 14
ARTICLE V
AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 14
Section 5.01. Use of Proceeds. . . . . . . . . . . . . . . . . . 14
Section 5.02. Maintenance of Existence . . . . . . . . . . . . . 14
Section 5.03. Maintenance of Records . . . . . . . . . . . . . . 14
Section 5.04. Maintenance of Properties. . . . . . . . . . . . . 14
Section 5.05. Conduct of Business. . . . . . . . . . . . . . . . 14
Section 5.06. Maintenance of Insurance . . . . . . . . . . . . . 14
Section 5.07. Compliance with Laws . . . . . . . . . . . . . . . 15
Section 5.08. Right of Inspection. . . . . . . . . . . . . . . . 15
Section 5.09. Deposit Insurance. . . . . . . . . . . . . . . . . 15
Section 5.10. Reporting Requirements . . . . . . . . . . . . . . 15
Section 5.11. Environment. . . . . . . . . . . . . . . . . . . . 18
Section 5.12. Capital Adequacy . . . . . . . . . . . . . . . . . 18
ARTICLE VI
NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.01. Liens. . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.02. Debt . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.03. Xxxxxxx, Acquisitions, Etc.. . . . . . . . . . . . 20
Section 6.04. Leases . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.05. Sale and Leaseback . . . . . . . . . . . . . . . . 21
Section 6.06. Dividends. . . . . . . . . . . . . . . . . . . . . 21
Section 6.07. Sale of Assets . . . . . . . . . . . . . . . . . . 21
Section 6.08. Guaranties, Etc. . . . . . . . . . . . . . . . . . 21
Section 6.09. Transactions with Affiliates . . . . . . . . . . . 22
ARTICLE VII
FINANCIAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . 22
Section 7.01. Capital Expenditures . . . . . . . . . . . . . . . 22
Section 7.02. Capital Ratios . . . . . . . . . . . . . . . . . . 22
Section 7.03. Return on Assets . . . . . . . . . . . . . . . . . 22
Section 7.04. Return on Equity . . . . . . . . . . . . . . . . . 23
Section 7.05. Net Interest Margin. . . . . . . . . . . . . . . . 23
Section 7.06. Efficiency Ratio . . . . . . . . . . . . . . . . . 23
Section 7.07. Loan Delinquencies . . . . . . . . . . . . . . . . 23
Section 7.08. Reserves . . . . . . . . . . . . . . . . . . . . . 23
Section 7.09. Asset Quality. . . . . . . . . . . . . . . . . . . 23
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ARTICLE VIII
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.01. Events of Default. . . . . . . . . . . . . . . . . 23
Section 8.02. Remedies upon Event of Default . . . . . . . . . . 26
ARTICLE IX
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9.01. Amendments, Etc. . . . . . . . . . . . . . . . . . 27
Section 9.02. Notices, Etc.. . . . . . . . . . . . . . . . . . . 28
Section 9.03. No Waiver. . . . . . . . . . . . . . . . . . . . . 28
Section 9.04. Successors and Assigns . . . . . . . . . . . . . . 28
Section 9.05. Costs, Expenses, and Taxes . . . . . . . . . . . . 29
Section 9.06. Integration. . . . . . . . . . . . . . . . . . . . 29
Section 9.07. Indemnity. . . . . . . . . . . . . . . . . . . . . 29
Section 9.08. Governing Law. . . . . . . . . . . . . . . . . . . 29
Section 9.09. Severability of Provisions . . . . . . . . . . . . 29
Section 9.10. Headings . . . . . . . . . . . . . . . . . . . . . 30
Section 9.11. Jury Trial Waiver. . . . . . . . . . . . . . . . . 30
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EXHIBITS
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EXHIBIT TITLE REFERENCED UNDER
A Banks Section 1.01
B Collateral Section 1.01
C [Intentionally Omitted]
D Note Section 2.03
D-1 Revolving Credit/Term Note Section 1.01
E [Intentionally Omitted]
F Officer's Certificate Section 3.02
G Litigation Section 4.07
H Real Estate Owned Section 4.15
I Certificate of No Default Section 5.10
J Permitted Liens Section 6.01
K Permitted Debt Section 6.02
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AMENDED AND RESTATED REVOLVING CREDIT/TERM LOAN AGREEMENT
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THIS AMENDED AND RESTATED REVOLVING CREDIT/TERM LOAN AGREEMENT
is dated July 31, 1998 between COMMUNITY BANKSHARES, INC., a Georgia
corporation, whose principal place of business is at 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 (the "Borrower") and SUNTRUST BANK,
ATLANTA, a Georgia banking corporation whose principal place of
business is at Park Place, Atlanta, Georgia 30303 (the "Lender").
This Amended and Restated Revolving Credit/Term Loan Agreement renews
the Revolving Credit under and supersedes the Amended and Restated
Revolving Credit /Term Loan Agreement between the parties dated July
21, 1997. The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings (terms defined in the
singular to have same meaning when used in the plural and vice versa):
"Affiliate" means any Person (1) which directly or indirectly controls,
or is controlled by, or is under common control with the Borrower or a
Subsidiary; (2) which directly or indirectly beneficially owns or holds
five percent (5.0%) or more of any class of voting stock of the Borrower
or any Subsidiary; or (3) five percent (5.0%) or more of the voting stock
of which is directly or indirectly beneficially owned or held by the
Borrower or a Subsidiary. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of a Person whether through the ownership of
voting securities, by contract, or otherwise.
"Agreement" means this Amended and Restated Revolving Credit/Term
Loan Agreement, as amended, supplemented, or modified from time to time.
"Bank" means each Subsidiary of Borrower that is listed on Exhibit
A, attached hereto and incorporated herein, and any Subsidiary acquired
by Borrower from time to time after the date hereof, which is a banking
association or banking corporation organized under either the laws of the
United States or of a state in the United States.
"Business Day" means any day other than a Saturday, Sunday, or
other day on which commercial banks in Georgia are authorized or required to
close under the laws of the State of Georgia.
"Call Reports" means, with respect to any Bank, such Bank's
Consolidated Reports of Condition and Income filed with such Bank's
applicable federal Regulatory Authority.
"Capital Lease" means all leases which have been or should be
capitalized on the books of the lessee in accordance with generally
accepted accounting principles.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the regulations and published interpretations thereof.
"Collateral" means all property which is subject to the Lien
granted by any Loan Document, including, without limitation, the personal
property identified and described on Exhibit B attached hereto and
incorporated herein. ---------
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 414(b) or 414(c) of the Code.
"Debt" means without duplication (1) indebtedness or liability
of Borrower or any Subsidiaries for borrowed money; (2) obligations of
Borrower or any Subsidiaries evidenced by bonds, debentures, notes, or
other similar instruments; (3) obligations of Borrower or any
Subsidiaries for the deferred purchase price of property or services
(including trade obligations); (4) obligations of Borrower or any
Subsidiaries as lessee under Capital Leases; (5) liabilities of
Borrower or any Subsidiaries in respect of unfunded vested benefits
under Plans covered by ERISA; (6) all guarantees, endorsements (other
than for collection or deposit in the ordinary course of business),
interest rate swaps, and other contingent obligations of Borrower or
any Subsidiaries to purchase, to provide funds for payment, to supply
funds to invest in any Person or entity, or otherwise to assure a
creditor against loss (except loans or letters of credit made or
issued in the ordinary course of business); and (7) obligations of
Borrower or any Subsidiaries, other than obligations as a lender,
secured by any Liens, whether or not the obligations have been
assumed. The term "Debt" does not include any deposit liabilities of
any Bank.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and published
interpretations thereof.
"Event of Default" means any of the events specified in Section
8.01, provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"GAAP" means generally accepted accounting principles in the
United States.
"Governmental Authority" means any nation or government, any
state or political subdivision thereof and any entity exercising executive,
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legislative, judicial, regulatory, or administrative functions of or
pertaining to government.
"Lien" means the charge, encumbrance, security interest, or right of
the Lender in property created by any Loan Document or any other mortgage,
deed of trust, pledge, security interest, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority,
or other security agreement or preferential arrangement, charge, or
encumbrance of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as of the foregoing, or the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction to evidence any of the foregoing).
"Loan" means collectively, the Revolving Credit and the Term Loan,
as such terms are defined, respectively, in Sections 2.01 and 2.03 of this
Agreement.
"Loan Document" means this Agreement, the Note, the Revolving
Credit/Term Note, the Security Agreement, or any deed to secure debt,
mortgage, deed of trust, pledge agreement, security agreement, or
other agreement evidencing or securing the Loan (two or more of the
foregoing being also referred to collectively herein as the "Loan
Documents").
"Multiemployer Plan" means a Plan described in Section 4001(a)(3)
of ERISA.
"1996 Agreement" means the Revolving Credit/Term Loan Agreement by
and between Borrower and Xxxxxx dated January 10, 1996, as amended,
supplemented, or modified from time to time.
"Note" has the meaning assigned to such term in Section 2.01.01.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority, or other entity of whatever nature.
"Plan" means any pension plan which is covered by Title IV of ERISA
and in respect of which the Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest announced by the Lender
from time to time as its prime commercial lending rate, which rate is not
3
necessarily the lowest rate of interest charged by the Lender to its
borrowers.
"Principal Office" means the Lender's office at 00 Xxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000.
"Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
"Real Estate Owned" has the meaning assigned to such term in
Section 4.15.
"Regulatory Authority" or "Regulatory Authorities" means the
Federal Reserve Board and, as applicable, the Department of Banking of a
state of the United States, the Federal Deposit Insurance Corporation,
the Office of the Comptroller of the Currency and any other agency with
regulatory control over Borrower, any Bank or any other Subsidiary.
"Reportable Event" means any of the events set forth in Section
4043 of ERISA.
"Revolving Credit" has the meaning assigned to such term in
Section 2.01.
"Revolving Credit/Term Note" shall have the meaning assigned to
such term in Section 2.05.
"Revolving Maturity Date" means July 31, 1999.
"Security Agreement" means the Amended and Restated Stock Pledge
and Security Agreement executed by Xxxxxxxx in favor of Xxxxxx dated July
21, 1997.
"Subsidiary" means, as to the Borrower, a corporation of which
shares of stock having ordinary voting power (other than stock having such
power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation are, at the
time, owned, or the management of which corporation is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both, by the
Borrower. The term "Subsidiary" shall specifically include the Banks.
"Term Loan" means that portion of the credit established pursuant
to the 1996 Agreement which remains outstanding pursuant thereto and under
the Revolving/Credit Term Note.
"Tier I Capital" means those components of the equity capital of
the Borrower or of any Bank which, in the aggregate, constitute the core
4
or primary capital of the Borrower or Bank, as those components are
determined and defined from time to time by the Federal Regulatory
Authority having primary jurisdiction over the Borrower or any Bank.
"Tier II Capital" means those components of the equity capital
of the Borrower or of any Bank which, in the aggregate, constitute the
supplementary capital of the Borrower or Bank, as those components are
determined and defined from time to time by the Federal Regulatory
Authority having primary jurisdiction over the Borrower or any Bank.
"Total Capital" means the total of the amounts of Tier I Capital
and Tier II Capital that qualify, under the applicable regulations of the
Federal Regulatory Authority having primary jurisdiction over the
Borrower or any Bank, for inclusion in the computation of leverage
capital requirements and risk-weighted capital requirements.
SECTION 1.02. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section
4.04, and all financial data submitted pursuant to this Agreement
shall be prepared in accordance with such principles.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
SECTION 2.01. REVOLVING CREDIT. Subject to and upon the terms
and conditions set forth in this Agreement, the Lender hereby establishes
until the Revolving Maturity Date a revolving credit facility in favor
of the Borrower not to exceed THREE MILLION AND NO/100 DOLLARS
($3,000,000.00) in aggregate principal at any one time outstanding
(the "Revolving Credit"). Within the limits of the Revolving Credit,
the Borrower may borrow, repay and reborrow under the terms of this
Agreement; provided, however, the Borrower may neither borrow nor
reborrow should there exist an Event of Default.
SECTION 2.01.01. NOTE. The borrower's obligation to pay interest
and repay principal under the Revolving Credit shall be evidenced by its
Promissory Note (the "Note") a copy of which is attached hereto and
incorporated herein as EXHIBIT D.
SECTION 2.02. INTEREST ON THE REVOLVING CREDIT. Interest shall
accrue on all advances under the Revolving Credit, shall be calculated on
the basis of actual days elapsed and a year of 360 days, and shall be
5
computed at an annual rate of interest equal to the Prime Rate, minus
one percent (1.0%). The interest rate shall change as of the opening
of business on each day the Lender changes the Prime Rate. Accrued
interest on the Revolving Credit shall be paid on the last day of each
calendar quarter, commencing September 30, 1998 and on the Revolving
Maturity Date.
SECTION 2.03. TERM LOAN. The Term Loan shall remain outstanding
and subject to the terms of the Revolving Credit/Term Note and the terms
of this Agreement.
SECTION 2.04. INTEREST ON THE TERM LOAN. The Borrower shall
pay interest to the Lender on the outstanding and unpaid principal amount
of the Term Loan made at a rate per annum equal to the Prime Rate, minus
one percent (1%).
Any change in the interest rate resulting from a change in the Prime
Rate shall become effective as of the opening of business on the day on
which such change in the Prime Rate shall become effective. Interest shall
be calculated on the basis of a year of three hundred sixty (360) days for
the actual number of days elapsed. Interest shall be paid in immediately
available funds on the last day of each calendar quarter and at maturity
at the Principal Office. Any principal amount not paid when due (at
maturity, by acceleration, or otherwise) shall bear interest thereafter
until paid in full, payable on demand, at a rate which shall be two
percent (2.0%) above the rate which would otherwise be applicable.
SECTION 2.05. REVOLVING CREDIT/TERM NOTE. The Borrower's
obligation to repay the Term Loan shall continue to be evidenced by its
promissory note (the "Revolving Credit/Term Note")a copy of which is
attached hereto and incorporated herein as EXHIBIT D-1.
SECTION 2.06. METHOD OF PAYMENT. The Borrower shall make each
payment under this Agreement, the Note, and Revolving Credit/Term Note
on the date when due in lawful money of the United States to the Lender
at its Principal Office in immediately available funds. The Borrower
hereby authorizes the Lender, if and to the extent payment is not made
when due under this Agreement, the Note, or the Revolving Credit/Term
Note to charge from time to time against any account of the Borrower
with the Lender any amount so due. Whenever any payment to be made under
this Agreement, the Note, or the Revolving Credit/Term Note shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest.
SECTION 2.07. USE OF PROCEEDS. Advances under the Revolving
Credit shall be used by the Borrower for general corporate purposes. The
6
Borrower will not, directly or indirectly, use any part of such
advances for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or to extend credit to any Person for the
purpose of purchasing or carrying any such margin stock, or for any
purpose which violates, or is inconsistent with, Regulation X of such
Board of Governors.
ARTICLE III
ADVANCES
SECTION 3.01. ADVANCES. The Borrower shall give the Lender at
least one (1) Business Day's telephone notice of a requested disbursement
under this Agreement, specifying the date the disbursement is requested
and the amount thereof. The Lender may rely upon such telephone request
for disbursements received from the individual(s) identifying themselves
as and purporting to be Xx. Xxxxx Xxxxxxxx, Chief Financial Officer of the
Borrower. The telephone request for disbursement should be promptly confirmed
in writing by Borrower by mailing or transmitting by facsimile transmission
a confirmation to the Lender at the address designated hereinafter, as may
be amended. Upon fulfillment of the applicable conditions set forth below,
and provided that the request for disbursement does not cause the Borrower
to exceed the aggregate principal amount of the Revolving Credit, the
Lender will make such disbursements available to the Borrower in immediately
available funds by crediting the amount thereof to the Borrower's account,
or other designated account, with the Lender.
SECTION 3.02.CONDITIONS PRECEDENT TO INITIAL ADVANCE. The
obligation of the Lender to make the initial advance under the Revolving
Credit is subject to the condition precedent that the Lender shall have
received on or before the day of such advance each of the following, in
form and substance satisfactory to the Lender and its counsel:
(1) NOTE. The Note duly executed by the Borrower;
(2) SECURITY AGREEMENT. The Security Agreement shall remain in
full force and effect.
(3) EVIDENCE OF ALL CORPORATE ACTION BY THE BORROWER. Certified
(as of the date of this Agreement) copies of all corporate action taken by
the Borrower, including resolutions of its Board of Directors, authorizing
the execution, delivery, and performance of the Loan Documents to which it
is a party and each other document to be delivered pursuant to this Agreement;
7
(4) INCUMBENCY AND SIGNATURE CERTIFICATE OF THE BORROWER. A
certificate (dated as of the date of this Agreement) of the Secretary of
Borrower certifying the names and true signatures of officers of the Borrower
authorized to sign the Loan Documents to which it is a party and each other
documents to be delivered by the Borrower under this Agreement;
(5) OPINION OF COUNSEL FOR THE BORROWER. [Intentionally Omitted]
(6) OFFICER'S CERTIFICATE. A certificate signed by a duly
authorized officer of Borrower dated the date of this Agreement, in
substantially the form of EXHIBIT F;
(7) ADDITIONAL DOCUMENTATION. Such other approvals, opinions, or
documents as the Lender may reasonably request;
(8) REQUEST FOR ADVANCE. A request for advance pursuant to
Section 3.01 hereof;
(9) REGULATORY APPROVAL. Copies of any and all necessary
Governmental Authority or Regulatory Authority approvals;
(10) NO MATERIAL ADVERSE CHANGE. A certificate signed by a duly
authorized officer of the Borrower stating that there has been no material
adverse change in the condition (financial or otherwise), business, or
operations of the Borrower or any Subsidiary since December 31, 1994.
SECTION 3.03. CONDITIONS PRECEDENT TO SUBSEQUENT ADVANCES.
The obligation of the Lender to make subsequent advances under the
Revolving Credit is subject to the conditions precedent that the
Lender shall have received, in form and substance satisfactory to it,
each of the following documents, and that each of the conditions
described below is fulfilled to the satisfaction of the Lender: (i)
if applicable, a request for advance pursuant to Section 3.01 hereof;
and (ii) the representations and warranties contained in Article IV
hereof and each of the other Loan Documents shall be correct in all
material respects on and as of the date of the request for the advance
and the date of the advance (if applicable), with the same effect as
though made on and as of those dates, except to the extent that such
representations and warranties relate solely to an earlier date, and
on each of such dates, no event, act, or condition shall have occurred
or be continuing, or would result from the advance requested which
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse,
or both. The submission by the Borrower of an oral or written request
for advance shall constitute a representation and warranty as to the
8
correctness of the above facts, and if requested by the Lender with
respect to the advance requested, the Borrower shall furnish to the
Lender a written certificate of an officer of the Borrower,
satisfactory in form and substance to the Lender, as to the
correctness of the above facts as a condition precedent to such
advance.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into the Agreement and
to make advances under the Revolving Credit, the Borrower represents and
warrants to the Lender that:
SECTION 4.01. INCORPORATION, GOOD STANDING, AND DUE
QUALIFICATION. The Borrower and each of its non-bank Subsidiaries is a
corporation duly incorporated, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation. Each of the
Banks set forth on EXHIBIT A is a banking corporation and is duly
organized, validly existing, and in good standing under the laws of the
state of incorporation listed on such EXHIBIT A. The Borrower and each
of its Subsidiaries has the corporate power and authority to own its assets
and to transact the business in which it is now engaged or proposed to
be engaged; and is duly qualified as a foreign corporation and in good
standing under the laws of each other jurisdiction in which such
qualification is required.
SECTION 4.02. CORPORATE POWER AND AUTHORITY. The execution,
delivery, and performance by the Borrower of the Loan Documents and
the creation of the security interest provided for under the Security
Agreement are within the Borrower's corporate powers and have been
duly authorized by all necessary corporate action and do not and will
not (1) require any consent or approval of the stockholders of the
Borrower; (2) contravene the Borrower's charter or bylaws; (3) violate
any provision of any law, rule, regulation (including, without
limitation, Regulations U and X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination, or award presently in effect having applicability to
the Borrower; (4) result in a breach of or constitute a default under
any indenture or loan or credit agreement or any other agreement,
lease, or instrument to which Borrower is a party or by which it or
its properties may be bound or affected; (5) result in, or require,
the creation or imposition of any Lien, except as contemplated by the
Security Agreement, upon or with respect to any of the properties now
owned or hereafter acquired by the Borrower; and (6) cause the
Borrower to be in default under any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination, or award of any
such indenture, agreement, lease, or instrument.
9
SECTION 4.03. LEGALLY ENFORCEABLE AGREEMENT. This Agreement
is, and each of the other Loan Documents are legal, valid, and binding
obligations of the Borrower, and enforceable against the Borrower in
accordance with their respective terms, except to the extent that such
enforcement may be limited by (i) applicable bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar laws
affecting creditors' rights generally, and (ii) general principles of
equity (whether applied in a proceeding at law or in equity).
SECTION 4.04. FINANCIAL STATEMENTS. The consolidated balance
sheet of the Borrower and its Subsidiaries as of December 31, 1997 and
the related consolidated statements of income, shareholder's equity, and
cash flows of the Borrower and its Subsidiaries for the fiscal year
then ended, and the accompanying footnotes, together with the opinion
thereon, dated December 31, 1997 of Xxxxxxx & Xxxxxxx, independent
certified public accountants, copies of which have been furnished to
the Lender, are complete and correct and fairly present the financial
condition of the Borrower and its Subsidiaries as at such dates and
the results of the operations of the Borrower and its Subsidiaries for
the periods covered by such statements, all in accordance with GAAP;
and since December 31, 1997, there has been no material adverse change
in the condition (financial or otherwise), business, or operations of
the Borrower or any Subsidiary. There are no liabilities of the
Borrower or any Subsidiary, fixed or contingent, which are material
but are not reflected in the financial statements or in the notes
thereto, other than liabilities arising in the ordinary course of
business since December 31, 1997. No information, exhibit, or report
furnished by the Borrower to the Lender in connection with the
approval of the Loan or negotiation of this Agreement contains any
material misstatement of fact or omitted to state a material fact or
any fact necessary to make the statement contained therein not
materially misleading.
SECTION 4.05. LABOR DISPUTES AND ACTS OF GOD. Neither the
business nor the properties of the Borrower or any Subsidiary are affected
by any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the public
enemy, or other casualty (whether or not covered by insurance)
materially and adversely affecting such business or properties or the
operation of the Borrower or such Subsidiary.
SECTION 4.06. OTHER AGREEMENTS. Neither the Borrower nor any
Subsidiary is a party to any indenture, loan, credit agreement,
regulatory agreement or imposition, or to any lease or other agreement
or instrument, or subject to any charter or corporate restriction
which could have a material adverse effect on the business, properties,
assets, operations, or conditions, financial or otherwise, of the Borrower
or any Subsidiary or the ability of the Borrower to carry out its
obligations under the Loan Documents to which it is a party. Neither the
10
Borrower nor any Subsidiary is in material default in any respect in the
performance, observance, or fulfillment of any of the obligations, covenants,
or conditions contained in any agreement or instrument to which it is a party.
SECTION 4.07. LITIGATION. Except as is set forth expressly on
EXHIBIT G attached hereto, no action or proceeding is pending or,
threatened against, or affecting, the Borrower or any of its
Subsidiaries before any court, board, commission, governmental agency,
or arbitrator, which may, in any one case or in the aggregate,
materially adversely affect the financial condition, operations,
properties, or business of the Borrower or any Subsidiary or the
ability of the Borrower to perform its obligation under the Loan
Documents to which it is a party.
SECTION 4.08. NO DEFAULTS ON OUTSTANDING JUDGMENTS OR ORDERS.
The Borrower and its Subsidiaries have satisfied all material judgments,
and neither the Borrower nor any Subsidiary is in default with respect
to any judgment, writ, injunction, decree, rule, or regulation of any
court, arbitrator, federal, state, municipal, or other governmental
authority, commission, board, bureau, agency, or instrumentality,
domestic or foreign, which default shall materially and adversely
affect the business or properties of Borrower and its Subsidiaries.
SECTION 4.09. OWNERSHIP AND LIENS. The Borrower and each
Subsidiary have title to, or valid leasehold interests in, all of their
properties and assets, real and personal, including the properties and
assets and leasehold interests reflected in the financial statements
referred to in Section 4.04 (other than any properties or assets
disposed of in the ordinary course of business), and none of the
properties and assets owned by the Borrower or any Subsidiary and none
of their leasehold interests is subject to any Lien, except such as
may be permitted pursuant to Section 6.01 of this Agreement.
SECTION 4.10. SUBSIDIARIES AND OWNERSHIP OF STOCK. The
Borrower's audited and consolidated financial statement for the fiscal
year ending December 31, 1997, as provided to the Lender, includes a
complete and accurate list of the Subsidiaries of the Borrower. All
of the outstanding capital stock of each Subsidiary has been validly
issued, is fully paid and nonassessable, and is owned by the Borrower
free and clear of all Liens.
SECTION 4.11. ERISA. With respect to each Plan maintained by
Borrower and each Subsidiary, the Borrower and each Subsidiary are in
compliance in all material respects with all applicable provisions of
ERISA. Neither a Reportable Event nor a Prohibited Transaction has
occurred and is continuing with respect to any Plan; no notice of
intent to terminate a Plan has been filed, nor has any Plan been
terminated; no circumstances exist which constitute grounds entitling
11
the PBGC to institute proceedings to terminate, or appoint a trustee
to administer, a Plan, nor has the PBGC instituted any such
proceedings; neither the Borrower nor any Commonly Controlled Entity
has completely or partially withdrawn from a Multiemployer Plan; the
Borrower and each Commonly Controlled Entity have met their minimum
funding requirements under ERISA with respect to all of their Plans,
and the present value of all vested benefits under each Plan exceeds
the fair market value of all Plan assets allocable to such benefits,
as determined on the most recent valuation date of the Plan and in
accordance with the provisions of ERISA; and neither the Borrower nor
any Commonly Controlled Entity has incurred any liability to the PBGC
under ERISA.
SECTION 4.12. OPERATION OF BUSINESS. The Borrower and its
Subsidiaries possess all licenses, permits, franchises, patents,
copyrights, trademarks, and trade names, or rights thereto, necessary
in all material respects to conduct their respective businesses
substantially as now conducted and as presently proposed to be
conducted, and the Borrower and its Subsidiaries are not to Borrower's
knowledge, in violation of any valid rights of others with respect to
any of the foregoing.
SECTION 4.13. TAXES. The Borrower and each of its Subsidiaries
have filed all tax returns (federal, state, and local) required to be filed
and have paid all taxes, assessments, and governmental charges and levies
shown thereon to be due, including interest and penalties. The federal
income tax liabilities of the Borrower and its Subsidiaries have been
audited by the Internal Revenue Service and have been finally determined
and satisfied for all taxable years up to and including the taxable year
ended December 31, 1994.
SECTION 4.14. ABSENCE OF UNDISCLOSED LIABILITIES. Except as
reflected in the audited consolidated balance sheet of Borrower at
December 31, 1997 (including the notes thereto), as of December 31,
1997, neither Borrower nor any Subsidiary had any material liability
or obligation whatsoever, whether accrued, absolute, contingent, or
otherwise that should, in accordance with GAAP, have been disclosed in
such financial statements and notes thereto. Since December 31, 1997,
neither Borrower nor any Subsidiary has incurred any material
liability or obligation, except for liabilities and obligations
incurred in the ordinary course of business or that will not have a
material adverse effect on Borrower.
SECTION 4.15. ENVIRONMENT. The Borrower and each Subsidiary
have duly complied in all material respects with, and their businesses,
operations, assets, equipment, property, leaseholds, other real estate
owned, or other facilities are in compliance in all material respects
with, the provisions of all federal and state, environmental, health,
and safety laws, codes, and ordinances, and all rules and regulations
12
promulgated thereunder. Neither the Borrower nor any Subsidiary has
received notice of, nor knows of or suspects, facts which might
constitute any violations of any federal or state environmental, health,
or safety laws, codes, or ordinances, and any rules or regulations
promulgated thereunder with respect to its businesses, operations, assets
(including but not limited to real property loan collateral), equipment,
property, leaseholds, or other facilities. Set forth in EXHIBIT H is a
list of all real property owned by Xxxxxxxx and/or the Subsidiaries other
than real property acquired pursuant to foreclosure of a lien in favor of
Borrower or any Subsidiary (or by deed in lieu thereof) ("Real Estate
Owned") or leased by the Borrower and its Subsidiaries at any time since
December 31, 1994, wherever located, and a brief description of the business
conducted at such location.
SECTION 4.16. GOVERNMENTAL APPROVAL. All permits, consents,
authorizations, approvals, declarations, notifications, filings or
registrations with any Governmental Authority or Regulatory Authority
or any third party which are necessary in all material respects in
connection with the consummation of this transaction have been obtained
on or before the date hereof.
SECTION 4.17. REGULATORY COMPLIANCE AND NOTICE OF REGULATORY
ACTION. The Borrower and each Subsidiary are in compliance in all material
respects with all laws, statutes, ordinances, and governmental rules,
regulations, or requirements relating to or affecting their business
or operations. There are no outstanding notices of charges, cease-
and-desist orders (temporary or otherwise), or orders to take
affirmative action issued by any Governmental Authority or Regulatory
Authority against the Borrower, any Bank or any other Subsidiary, or
any director, officer, employee or agent of the Borrower, any Bank or
any other Subsidiary. No agreement or memorandum of understanding has
been entered into between any Governmental Authority or Regulatory
Authority and the Borrower, any Bank or any other Subsidiary or any
director, officer, employee or agent of the Borrower, any Bank or any
other Subsidiary. No notice of intention to remove from office or
notice of intention to suspend from office has been served upon any
officer or director of the Borrower, any Bank or any other Subsidiary
by any Governmental Authority or Regulatory Authority.
SECTION 4.18. SECURITIES ACTIVITIES. The Borrower has not
issued any securities except as were (a) duly registered under the
Securities Act of 1933, as amended, and applicable blue sky laws, or (b)
validly exempt from registration.
SECTION 4.19. DEPOSIT INSURANCE. Each Bank is an "insured
depository institution" within the meaning of Section 3 (c)(2) of the
Federal Deposit Insurance Act, as amended.
13
ARTICLE V
AFFIRMATIVE COVENANTS
So long as the Note or Revolving Credit/Term Note shall remain
unpaid, the Borrower will:
SECTION 5.01. USE OF PROCEEDS. Use the proceeds of the Loan
only for the purposes set forth herein, and will furnish the Lender such
evidence as it may reasonably require with respect to such use.
SECTION 5.02. MAINTENANCE OF EXISTENCE. Preserve and maintain,
and cause each Subsidiary to preserve and maintain, its corporate
existence and good standing in the jurisdiction of its incorporation,
and qualify and remain qualified, and cause each Subsidiary to qualify
and remain qualified, as a foreign corporation in each jurisdiction in
which the ownership of property or the nature of its business makes
such qualification necessary or required, except where such failure to
qualify shall not materially or adversely affect the Borrower and its
Subsidiaries taken as a whole.
SECTION 5.03. MAINTENANCE OF RECORDS. Keep, and cause each
Subsidiary to keep, adequate records and books of account, in which
complete entries will be made in accordance with GAAP consistently
applied, reflecting all financial transactions of the Borrower and its
Subsidiaries.
SECTION 5.04. MAINTENANCE OF PROPERTIES. Maintain, keep, and
preserve, and cause each Subsidiary to maintain, keep, and preserve,
all of its properties (tangible and intangible) necessary or useful in
the proper conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.05. CONDUCT OF BUSINESS. Continue, and cause each
Subsidiary to continue, to engage in a business of the same general type
as now conducted by it on the date of this Agreement.
SECTION 5.06. MAINTENANCE OF INSURANCE. Maintain and see that
its Subsidiaries maintain, or cause to be maintained, insurance coverages
including, but not limited to, bankers' blanket bonds, public liability
insurance, and fire and extended coverage insurance on all assets owned
by them, all in such form and amounts, and with such insurers, as are
reasonably satisfactory to the Lender.
SECTION 5.07. COMPLIANCE WITH LAWS. Comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
rules, regulations, orders, and material agreements to which they are
14
subject, such compliance to include, without limitation, maintaining
adequate cash reserves for the payment of, and paying before the same
become delinquent, all taxes, assessments, and governmental charges
imposed upon it or upon its property except as contested in good faith.
SECTION 5.08. RIGHT OF INSPECTION. At any reasonable time and
from time to time with prior notice, permit the Lender or any agent or
representatives thereof to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any Subsidiary, and to discuss the affairs, finances,
and accounts of the Borrower and any Subsidiary with any of their
respective officers and directors and the Borrower's independent
accountants.
SECTION 5.09. DEPOSIT INSURANCE. The Borrower will cause each
Bank to maintain federal deposit insurance and to be a member of the
Federal Deposit Insurance Corporation (or any successor thereto).
SECTION 5.10. REPORTING REQUIREMENTS. Furnish to the Lender:
(1) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within forty-five (45) days after the end of each of the first
three (3) quarters of each fiscal year of the Borrower, interim unaudited
consolidated and unconsolidated balance sheets of Borrower, and related
statements of income, shareholders equity and cash flows of the Borrower
for the prior quarter prepared in accordance with GAAP.
(2) CALL REPORTS. As soon as available, and in any event within
thirty (30) days after the end of each fiscal quarter of the Borrower,
copies of all Call Reports of the Borrower and each Bank as filed with
the Federal Deposit Insurance Corporation (or any successor thereto)
and/or the Comptroller of the Currency (or any successor), signed by
the chief financial officer of the Borrower and each Bank.
(3) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within one hundred twenty (120) days after the end of each fiscal
year of the Borrower, consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such fiscal year and
consolidated and consolidating statements of income, shareholder's equity,
and cash flows of the Borrower and its Subsidiaries for such fiscal year,
all in reasonable detail and stating in comparative form the respective
figures for the corresponding date and period in the prior fiscal year and
all prepared in accordance with GAAP and accompanied by an opinion thereon
acceptable to the Lender by Xxxxxxx & Xxxxxxx or other accountants selected
by the Borrower and acceptable to the Lender;
15
(4) F.R.Y.-6 ANNUAL REPORT. As soon as available, and in any
event within ten (10) days after the filing thereof, a copy of the Borrower's
F.R.Y.-6 Annual Report to the Federal Reserve System.
(5) MANAGEMENT LETTERS. Promptly upon receipt thereof, copies of
any reports submitted to the Borrower or any Subsidiary by independent
certified public accountants in connection with examination of the financial
statements of the Borrower or any Subsidiary made by such accountants;
(6) CERTIFICATE OF NO DEFAULT. Within forty-five (45) days after
the end of each of the quarters of each fiscal year of the Borrower, a
certificate of the chief financial officer of the Borrower, substantially in
the form of EXHIBIT I attached hereto and made a part hereof (a) certifying,
INTER ALIA, that (i) the representations and warranties contained in Article
IV hereof and in each of the Loan Documents remain true and correct (except
to the extent that such representations and warranties relate solely to an
earlier date), (ii) the Borrower and Subsidiaries are in compliance with the
covenants set forth herein, and (iii) no Event of Default has occurred and is
continuing or, if an Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action which is proposed to be
taken with respect thereto; and (b) with computations demonstrating
compliance with the covenants contained in Article VII;
(7) ACCOUNTANT'S REPORT. Simultaneously with the delivery of
the annual financial statements referred to in Section 5.10(3), a statement
of the independent public accountants to the effect that, in making the
examination necessary for the audit of such statements, they have obtained
no knowledge of any condition or event which constitutes an Event of Default,
or if such accountants shall have obtained knowledge of any such condition or
event, specifying in such certificate each such condition or event, of which
they have knowledge and the nature and status thereof;
(8) NOTICE OF LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any court or governmental
department, commission, board, bureau, agency, or instrumentality, domestic or
foreign, affecting the Borrower or any Subsidiary which, if determined
adversely to the Borrower or such Subsidiary, could have a material adverse
effect on the financial condition, properties, or operations of the Borrower
or such Subsidiary;
(9) NOTICE OF EVENTS OF DEFAULT. The Borrower will notify the
Lender immediately if it becomes aware of the occurrence of any Event of
Default or of any fact, condition, or event that only with the giving of
notice or passage of time, or both, could become an Event of Default, or
16
of the failure of the Borrower to observe any of its undertakings hereunder;
(10) ERISA REPORTS. As soon as possible, and in any event within
thirty (30) days after the Borrower knows or has reason to know that any
circumstances exist that constitute grounds entitling the PBGC to institute
proceedings to terminate a Plan with respect to the Borrower or any Commonly
Controlled Entity, and promptly, but in any event within five (5) Business
Days of receipt by the Borrower or any Commonly Controlled Entity of notice
that the PBGC intends to terminate a Plan or appoint a trustee to administer
the same, and promptly, but in any event within five (5) Business Days of the
receipt of notice concerning the imposition of withdrawal liability in excess
of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) with respect to the
Borrower or any Commonly Controlled Entity, the Borrower will deliver to the
Lender a certificate of the chief financial officer of the Borrower setting
forth all relevant details and the action which the Borrower proposes to
take with respect thereto;
(11) PROXY STATEMENTS, ETC. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements, and reports
which the Borrower or any Subsidiary sends to its stockholders, and copies
of all regular, periodic, and special reports, and all registration
statements which the Borrower or any Subsidiary files with the Securities
and Exchange Commission or any Governmental Authority which may be
substituted therefor, or with any national securities exchange;
(12) REPORTS TO REGULATORY AGENCIES. Promptly after the
sending or filing of the same, copies of all call reports and other reports,
including without limitation responses to administrative enforcement actions,
and modifications or amendments thereto, that the Borrower or its Subsidiaries
sends or files with any Regulatory Authority; and
(13) NOTICE OF REGULATORY ACTION. Promptly, written notice of
(i) the issuance of any notice of charges, cease-and-desist order (temporary
or otherwise), or order to take affirmative action by any Governmental
17
Authority or Regulatory Authority against the Borrower, any Bank or any other
Subsidiary, or any director, officer, employee or agent of the Borrower, any
Bank or any other Subsidiary, (ii) the service of any notice of intention to
remove from office or notice of intention to suspend from office by any
Governmental Authority or Regulatory Authority upon any director or officer of
the Borrower, any Bank or any other Subsidiary, (iii) the issuance of a notice
of termination of the status of any Bank as an insured bank under the Federal
Deposit Insurance Corporation Act, as amended, or (iv) the entering into of any
agreement or memorandum of understanding between any Governmental Authority or
Regulatory Authority and the Borrower, any Bank or any other Subsidiary, or any
director, officer, employee or agent of the Borrower, any Bank or any other
Subsidiary.
(14) ADVERSE CHANGES. Promptly after the occurrence thereof and
in no event later than ten (10) days thereafter, full disclosures of any
material adverse changes in the finances or business of Borrower or
any of its Subsidiaries.
(15) GENERAL INFORMATION. Such other information respecting the
condition or operations, financial or otherwise, of the Borrower or any
Subsidiary as the Lender may from time to time reasonably request.
SECTION 5.11. ENVIRONMENT. Be and remain, and cause each
Subsidiary to be and remain, in all material respects, in compliance with the
provisions of all federal and state environmental, health, and safety laws,
codes and ordinances, and all rules and regulations issued thereunder; and
notify the Lender immediately of any notice of an environmental complaint
received from any governmental agency or any other party.
SECTION 5.12. CAPITAL ADEQUACY. Maintain, and cause each Bank to
maintain, at all times, the minimum levels of regulatory capital necessary to
maintain the regulatory capital classification of "Well Capitalized," as such
term is defined by the applicable Regulatory Authority.
ARTICLE VI
NEGATIVE COVENANTS
So long as the Note or Revolving Credit/Term Note shall remain
unpaid, the Borrower will not:
SECTION 6.01. LIENS. Create, incur and assume, or suffer to exist,
or permit any Subsidiary to create, incur, assume, or suffer to exist, any
Lien upon or with respect to any of its properties (including, without
limitation, any Lien upon all or any part of the common or capital stock of
any of the Banks), now owned or hereafter acquired, except:
(1) Liens in favor of the Lender;
(2) Liens for taxes or assessments or other governmental charges
or levies if not yet due and payable or, if due and payable, if they are
18
being contested in good faith by appropriate proceedings and for which
appropriate reserves are maintained;
(3) Xxxxx imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, securing obligations
incurred in the ordinary course of business which are not yet due and
payable or which are being contested in good faith by appropriate
proceedings and for which appropriate reserves have been established;
(4) Liens under workers' compensation, unemployment insurance,
Social Security, or similar legislation;
(5) Liens, deposits, or pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of money),
leases (permitted under the terms of this Agreement), public or statutory
obligations, surety, stay, appeal, indemnity, performance, or other similar
bonds, or other similar obligations arising in the ordinary course of
business;
(6) Judgment and other similar Liens arising in connection with
court proceedings, provided the execution or other enforcement of such
Xxxxx is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(7) Easements, rights-of-way, restrictions, and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use, and enjoyment by the Borrower or any Subsidiary of the
property or assets encumbered thereby in the normal course of its business
or materially impair the value of the property subject thereto;
(8) Liens incidental to the conduct of banking business, not
incurred in connection with the borrowing of money, arising out of
transactions in federal funds, repurchase agreements, interbank credit
facilities, bank deposits, or other obligations to customers or depositors
of the Borrower's Subsidiaries.
(9) Liens incurred in connection with the borrowing by a Subsidiary
from the Federal Reserve Bank, or the Federal Home Loan Bank, in the ordinary
course of business;
(10) Those Liens specified in EXHIBIT J attached hereto and made a
part hereof; and
(11) Liens for purchase money security interests or Liens incurred
in connection with any conditional sale or other title retention agreement or
Capital Lease.
19
SECTION 6.02. DEBT. Create, incur, assume, or suffer to exist, or
permit any Subsidiary to create, incur, assume, or suffer to exist, any Debt,
except:
(1) Debt of the Borrower under this Agreement, the Note, or the
Revolving Credit/Term Note;
(2) Debt described in EXHIBIT K, and any renewals, extensions, or
refinancings of existing Debt on commercially reasonable terms (but there
shall be no voluntary prepayments of such Debt);
(3) Debt of a Subsidiary to the Federal Reserve Bank, or the Federal
Home Loan Bank, in the ordinary course of business;
(4) Accounts payable to trade creditors for goods or services which
are not aged more than sixty (60) days from the billing date and current
operating liabilities (other than for borrowed money) which are not more than
sixty (60) days past due, in each case incurred in the ordinary course of
business, as presently conducted, and paid within the specified time, unless
contested in good faith and by appropriate proceedings; and
(5) Debt of the Borrower or any Subsidiary secured by purchase money
liens and security interests permitted by Section 6.01 (11), which Debt shall
not exceed FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($400,000.00) in the
aggregate at any one time outstanding.
SECTION 6.03. MERGERS, ACQUISITIONS, ETC. Wind up, liquidate, or
dissolve itself, reorganize, merge, or consolidate with or into, or convey,
sell, assign, transfer, lease, or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, acquire all
or substantially all of the assets or the business of any Person, or commence
or acquire any new business not conducted by it on the date of this Agreement,
or permit any Subsidiary to do so, except that the Borrower or any Subsidiary
may merge into, consolidate with or acquire any other Person provided in each
case that immediately after giving effect thereto, no event shall occur and be
continuing which constitutes a Default or an Event of Default and, in the case
of any such merger with any other Person to which the Borrower or any Subsidiary
is a party, the Borrower or its Subsidiary is the surviving corporation. The
Lender, in its sole discretion, may consent in writing to additional exceptions.
SECTION 6.04. LEASES. Create, incur, assume, or suffer to exist, or
permit any Subsidiary to create, incur, assume, or suffer to exist, any
obligation as lessee for the rental or hire of any real or personal property,
except: (1) leases existing on the date of this Agreement and any extensions
20
or renewals thereof; (2) leases (other than Capital Leases) which do not in the
aggregate require the Borrower and its Subsidiaries on a consolidated basis to
make payments (including taxes, insurance, maintenance, and similar expense
which the Borrower or any Subsidiary is required to pay under the terms of any
lease) in any fiscal year of the Borrower in excess of FOUR HUNDRED THOUSAND
AND NO/100 DOLLARS ($400,000.00); (3) leases between the Borrower and any
Subsidiary or between any Subsidiaries. The Lender, in its sole discretion,
may consent in writing to additional exceptions.
SECTION 6.05. SALE AND LEASEBACK. Sell, transfer, or otherwise
dispose of, or permit any Subsidiary to sell, transfer, or otherwise dispose
of, any real or personal property to any Person and thereafter directly or
indirectly lease back the same or similar property.
SECTION 6.06. DIVIDENDS. After the date hereof, make any
distribution in respect of its capital stock or purchase, or redeem or
otherwise acquire any shares of its outstanding capital stock unless
such action has been approved by the necessary Regulatory Authorities,
and provided such distribution, redemption or acquisition shall not
impair Borrower's ability to service Debt nor cause Borrower to be in
violation of any Financial Covenants contained in Article VII of this
Agreement.
SECTION 6.07. SALE OF ASSETS. Sell, lease, assign, transfer,
pledge, mortgage, encumber, or otherwise dispose of, or permit any Subsidiary
to sell, lease, assign, transfer, pledge, mortgage, encumber, or otherwise
dispose of, any of its now owned or hereafter acquired assets (including,
without limitation, shares of stock and indebtedness of Subsidiaries,
receivables, and leasehold interest), except: (1) inventory disposed of in
the ordinary course of business; (2) the sale or other disposition of assets
no longer used or useful in the conduct of its business; (3) that any
Subsidiary may sell, lease, assign, or otherwise transfer its assets to the
Borrower or to any other subsidiary in the ordinary course of business
consistent with past practices; and (4) sales of loans in the ordinary course
of business and sales of Real Estate Owned and all other foreclosed assets.
The Lender, in its sole discretion, may consent in writing to additional
exceptions.
SECTION 6.08. GUARANTIES, ETC. Assume, guarantee, endorse, or
otherwise be or become directly or contingently responsible or liable, or
permit any Subsidiary to assume, guarantee, endorse, or otherwise be or become
directly or contingently responsible or liable (including, but not limited to,
an agreement to purchase any obligation, stock, assets, goods, or services,
or to supply or advance any funds, assets, goods, or services, or an agreement
to maintain or cause such Person to maintain a minimum working capital or net
worth, or otherwise to assure the creditors of any person against loss) for
obligations of any Person, except guaranties by endorsement of negotiable
21
instruments for deposits or collection or similar transactions in the ordinary
course of business and except pursuant to letters of credit or other similar
items (banker's acceptances, etc.) issued by the Banks in the ordinary course
of business.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, the purchase, sale, or exchange
of property or the rendering of any services, with any Affiliate, or permit
any Subsidiary to enter into any transaction, including, without limitation,
the purchase, sale, or exchange of property or the rendering of any service,
with any Affiliate, except in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business, upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than would obtain in a comparable arm's-length transaction with a Person not
an Affiliate, and in compliance with all applicable regulatory and statutory
requirements.
ARTICLE VII
FINANCIAL COVENANTS
So long as the Note or Revolving Credit/Term Note shall remain
unpaid:
SECTION 7.01. CAPITAL EXPENDITURES. Neither the Borrower nor the
Borrower's bank Subsidiaries will make any expenditures for fixed or capital
assets if, after giving effect thereto, the aggregate of all such expenditures
made by the Borrower or any bank Subsidiary would exceed FOUR MILLION AND
NO/100 DOLLARS ($4,000,000.00) during any fiscal year. Bank may, in its sole
discretion, approve in writing exceptions to this restriction.
SECTION 7.02. CAPITAL ADEQUACY. Maintain, and cause each Bank to
maintain, at all times, the minimum levels of regulatory capital necessary to
maintain the regulatory capital classification of "Well Capitalized," as such
term is defined by the applicable Regulatory Authority.
SECTION 7.03. RETURN ON ASSETS. Income from operations after taxes,
divided by average assets, on a consolidated basis shall not be less than one
and one-tenth percent (1.10%).
SECTION 7.04. RETURN ON EQUITY. Income from operations after taxes,
divided by average equity, on a consolidated basis shall not be less than
twelve percent (12%).
22
SECTION 7.05. [INTENTIONALLY OMITTED].
SECTION 7.06. [INTENTIONALLY OMITTED].
SECTION 7.07. [INTENTIONALLY OMITTED].
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) one hundred fifty percent (150%) of total non-
performing assets, or (iii) the minimum amount required by its primary
regulator.
SECTION 7.09. ASSET QUALITY. The ratio of loans 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 one and five tenths percent
(1.5%).
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. An Event of Default shall be deemed
to exist if any of the following events shall occur:
(1) The Borrower shall fail to pay the principal of, or interest on,
the Note or the Revolving Credit/Term Note, or any fee, within five (5) days of
its due date;
(2) Any representation, warranty or certification made or deemed made
by the Borrower in this Agreement, the Security Agreement, or any of the other
Loan Documents, or which is contained in any certificate, document, opinion, or
financial or other statement furnished at any time under or in connection with
any Loan Document, shall prove to have been incorrect, incomplete, or misleading
in any material respect on or as of the date made or deemed made;
(3) The Borrower shall fail to perform or observe any term, covenant,
condition or agreement contained herein or in any other of the Loan Documents
and such failure remains unremedied for thirty (30) days after the earlier of
its discovery by the Borrower or written notice thereof to the Borrower by the
Lender;
(4) Any Event of Default as defined (and after giving effect to any
applicable notice and/or cure periods) in any other of the Loan Documents shall
occur;
23
(5) The Borrower or any of its Subsidiaries shall (a) fail to pay
any indebtedness for borrowed money (other than the Note or the Revolving
Credit/Term Note) in excess of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($0,000.00) of the Borrower or such Subsidiary, as the case may be, when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise); or (b) fail to perform or observe any term, covenant, or condition
on its part to be performed or observed under any agreement or instrument
relating to any such indebtedness, when required to be performed or observed,
if the effect of such failure to perform or observe is to accelerate, or to
permit the acceleration of, after the giving of notice or passage of time, or
both, the maturity of such indebtedness, whether or not such failure to perform
or observe shall be waived by the holder of such indebtedness; or any such
indebtedness shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof and Borrower or its Subsidiaries fails to pay such indebtedness
in full;
(6) The Borrower or any of its Subsidiaries (a) shall generally not
pay, or shall be unable to pay, or shall admit in writing its inability to pay
its debts as such debts become due; or (b) shall make an assignment for the
benefit of creditors, or petition or apply to any tribunal for the appointment
of a custodian, receiver, or trustee for it or a substantial part of its
assets; or (c) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or
(d) shall have had any such petition or application filed or any such
proceeding commenced against it in which an order for relief is entered or an
adjudication or appointment is made, and which remains undismissed for a
period of sixty(60) days or more; or (e) shall take any corporate action
indicating its consent to, approval of, or acquiescence in any such petition,
application, proceeding, or order for relief or the appointment of a custodian,
receiver, or trustee for all or any substantial part of its properties; or (f)
shall suffer any such custodianship, receivership, or trusteeship to continue
undischarged for a period of sixty (60) days or more;
(7) One or more judgments, decrees, or orders for the payment of
money in excess of ONE MILLION AND NO/100 DOLLARS($1,000,000.00) in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries,
and the amount of said judgment(s) not covered by Xxxxxxxx's or Subsidiaries'
insurance is in excess of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00), and such judgments, decrees, or orders shall continue
unsatisfied and in effect for a period of thirty (30) consecutive days without
being vacated, discharged, satisfied, or stayed or bonded pending appeal;
24
(8) The Security Agreement shall at any time after its execution
and delivery and for any reason cease (a) to create a valid and perfected
first priority security interest in and to the property purported to be
subject to such Security Agreement; or (b) to be in full force and effect or
shall be declared null and void, or the validity or enforceability thereof
shall be contested by the Borrower, or the Borrower shall deny it has any
further liability or obligation under the Security Agreement, or the Borrower
shall fail to perform any of its obligations under the Security Agreement;
(9) Any of the following events shall occur or exist with respect
to the Borrower and any Commonly Controlled Entity under ERISA: any Reportable
Event shall occur; complete or partial withdrawal from any Multiemployer Plan
shall take place; any Prohibited Transaction shall occur; a notice of intent
to terminate a Plan shall be filed, or a Plan shall be terminated; or
circumstances shall exist which constitute grounds entitling the PBGC to
institute proceedings to terminate a Plan, or the PBGC shall institute such
proceedings; and in each case above, such event or condition, together with
all other events or conditions, if any, could subject the Borrower to any tax,
penalty, or other liability which in the aggregate may exceed FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($500,000.00); or
(10) If any Governmental Authority asserts or creates a Lien upon
any or all of the assets, equipment, property, leaseholds, or other facilities
of the Borrower by reason of the occurrence of a hazardous discharge or any
environmental complaint; or if any Governmental Authority asserts a claim
against the Borrower and/or its assets, equipment, property, leaseholds, or
other facilities for damages or cleanup costs relating to a hazardous
discharge or an environmental complaint; provided, however, that such claim
shall not constitute a default if, within ten (10) Business Days of the
occurrence giving rise to the claim, (a) the Borrower can prove to the
Lender's satisfaction that the Borrower has commenced and is diligently
pursuing either: (i) a cure or correction of the event which constitutes the
basis for the claim, and continues diligently to pursue such cure or correction
to completion or (ii) proceedings for any injunction, a restraining order, or
other appropriate emergency relief preventing such Governmental Authority from
asserting such claim, which relief is granted within ten (10) Business Days of
the occurrence giving rise to the claim and the injunction, order, or emergency
relief is not thereafter resolved or reversed on appeal; and (b) in either of
the foregoing events, the Borrower has posted a bond, letter of credit, or
other security satisfactory in form, substance, and amount to both the Lender
and the Governmental Authority asserting the claim to secure the proper and
complete cure or correction of the event which constitutes the basis for the
claim;
25
(11) If the Borrower or any Bank, or the directors, officers, or
employees thereof, becomes subject to any regulatory enforcement action,
which includes without limitation, a memorandum of understanding, written
agreement, supervisory directive, capital directive, removal action, or cease
and desist order, which regulatory enforcement action limits or restricts the
ability of Borrower or any Bank to engage in its normal business;
(12) Borrower shall fail to maintain senior management having
sufficient skill and experience in Borrower's industry to manage Borrower and
each Subsidiary competently and efficiently.
(13) If the ownership of Borrower as presently constituted shall
change such that more than twenty-five percent (%) of the outstanding voting
stock shall be transferred to any Person other than (i) an existing shareholder
who prior to the transfer owned not less than twenty-five (%) of the
outstanding voting stock of Borrower or (ii) an immediate family member of the
transferring shareholder.
(14) Any Bank shall be unable or shall be deemed to be unable to
declare and distribute dividends as a result of restrictions imposed by
applicable regulation or by any Regulatory Authority.
SECTION 8.02.REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default, the Lender may:
(1) By notice to the Borrower, declare the Note and/or the
Revolving Credit/Term Note all interest thereon, and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Note
and/or the Revolving Credit/Term Note, all such interest, and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest, or further notice of any kind, all of which are hereby expressly
waived by the Borrower;
(2) At any time and from time to time, without notice to the Borrower
(any such notice being expressly waived by the Borrower), set off and apply (i)
any and all deposits (general or special, time or demand, provisional or final)
at any time held by the Lender, and (ii) other indebtedness at any time owing
by the Lender to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower, now or hereafter existing under
this Agreement, the Note, or the Revolving Credit/Term Note any other Loan
Document, irrespective of whether or not the Lender shall have made any demand
under this Agreement, the Note, the Revolving Credit/Term Note, or under any
other of the Loan Documents and although such obligations may be unmatured;
26
(3) Exercise from time to time any and all rights and remedies
available to a secured party when a debtor is in default under a security
agreement as provided in the Uniform Commercial Code of Georgia, or available
to Lender under any other applicable law or in equity, including without
limitation the right to any deficiency remaining after disposition of the
Collateral;
(4) At its option, and without notice or demand of any kind, exercise
from time to time any and all other rights and remedies available to it under
this Agreement or any of the other Loan Documents;
(5) Borrower shall pay all of the reasonable costs and expenses
incurred by Xxxxxx in enforcing its rights under this Agreement and the other
Loan Documents. In the event any claim under this Agreement or under any of
the other Loan Documents is referred to an attorney for collection, or collected
by or through an attorney at law, Borrower will be liable to Lender for all
expenses incurred by it in seeking to enforce its rights hereunder, under any
other of the Loan Documents or in the Collateral, including without limitation
reasonable attorneys' fees; and (6)Any proceeds from disposition of any of the
Collateral may be applied by Lender first to the payment of all expenses and
costs incurred by Xxxxxx in enforcing the rights of Lender under each of the
Loan Documents and in collecting, retaking, holding, preparing the Collateral
for and advertising the sale or other disposition of and realizing upon the
Collateral, including without limitation reasonable attorneys' fees actually
incurred, as well as all other legal expenses and court costs. Any balance of
such proceeds may be applied by Lender toward the payment of the Loan and in
such order of application as the Lender may from time to time elect. Lender
shall pay the surplus, if any, to Borrower. Borrower shall pay the deficiency,
if any, to Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment, modification,
termination, or waiver of any provision of any Loan Document to which the
Borrower is a party, nor consent to any departure by the Borrower from any
Loan Document to which it is a party, shall in any event be effective unless
the same shall be in writing and signed by the Lender, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for under this Agreement and under the other Loan Documents shall be
27
in writing (including telex and facsimile transmissions) and mailed or
transmitted or delivered as follows:
If to the Borrower:
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx
Executive Vice President & Chief Financial Officer
Facsimile: (000) 000-0000
If to the Lender:
00 Xxxx Xxxxx
Mail Code: 121
Atlanta, Georgia 30303
Attention: Southeastern Financial Institutions
Facsimile: (000) 000-0000
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other party complying as to
delivery with the terms of this Section 9.02. Except as otherwise
provided in this Agreement, all such notices and communications shall
be effective when deposited in mails or sent, answer back received via
telecopier, with the original deposited in the mail, respectively,
addressed as aforesaid, except that notices to the Lender pursuant to
the provisions of Section 3.01 shall not be effective until received
by the Lender.
SECTION 9.03. NO WAIVER. No failure or delay on the part of the
Lender in exercising any right, power, or remedy granted hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power, or remedy preclude any other or further exercise
thereof or the exercise of any other right, power, or remedy hereunder.
SECTION 9.04. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Lender and
their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights under any Loan Document to which the
Borrower is a party without the prior written consent of the Lender.
SECTION 9.05. COSTS, EXPENSES, AND TAXES. The Borrower agrees to
pay on demand all costs and expenses incurred by the Lender in connection
with the preparation, execution, delivery, filing, and administration
of the Loan Documents, and of any amendment, modification, or supplement to
28
the Loan Documents, including, without limitation, the fees and out-of-pocket
expenses of counsel for the Lender incurred in connection with advising the
Lender as to its rights and responsibilities hereunder. The Borrower also
agrees to pay all such costs and expenses, including court costs, incurred
in connection with enforcement of the Loan Documents, or any amendments,
modification, or supplement thereto, whether by negotiation, legal proceedings,
or otherwise. In addition, the Borrower shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing, and recording of any of the Loan Documents and
the other documents to be delivered under any such Loan Documents, and agrees
to hold the Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees. This provision shall survive termination of this Agreement.
SECTION 9.06. INTEGRATION. This Agreement and the Loan Documents
contain the entire agreement between the parties relating to the subject matter
hereof and supersede all oral statements and prior writing with respect thereto.
SECTION 9.07. INDEMNITY. The Borrower hereby agrees to defend,
indemnify, and hold the Lender harmless from and against any and all claims,
damages, judgments, penalties, costs, and expenses (including reasonable
attorney's fees and court costs actually incurred now or hereafter arising
from the aforesaid enforcement of this clause) arising directly or indirectly
from the activities of the Borrower and its Subsidiaries, and its predecessors
in interest, or arising directly or indirectly from the Borrower's or any
Subsidiaries', or any predecessors in interest's, violation of any environmental
protection, health, or safety law, whether such claims are asserted by any
governmental agency or any other person. This indemnity shall survive
termination of this Agreement.
SECTION 9.08. GOVERNING LAW. This Agreement, the Note, and the
Revolving Credit/Term Note shall be governed by, and construed in accordance
with, the laws of the State of Georgia and the applicable laws of the United
States of America.
SECTION 9.09. SEVERABILITY OF PROVISIONS. Any provision of any Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
29
SECTION 9.10. HEADINGS. Article and Section headings in the Loan
Documents are included in such Loan Documents for the convenience of reference
only and shall not constitute a part of the applicable Loan Documents for any
other purpose.
SECTION 9.11. JURY TRIAL WAIVER. THE LENDER AND THE BORROWER HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER
IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED
TO THIS AGREEMENT OR THE LOAN DOCUMENTS. NO OFFICER OF THE LENDER HAS AUTHORITY
TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
COMMUNITY BANKSHARES, INC.
By: /s/ X. Xxxxx Xxxxxxx
-------------------------------------
Title: Pres. & CEO
-----------------------------
And: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: EVP & CFO
-----------------------------
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: First Vice President
------------------------------
And: [blank]
-----------------------------------
Title: [blank]
----------------------------
