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EXHIBIT 10(c)
WACHOVIA BANK, N.A.
SEA PINES ASSOCIATES, INC.
AND
SEA PINES COMPANY, INC.
AMENDED AND RESTATED
MASTER CREDIT AGREEMENT
OCTOBER 31, 2002
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS........................................... 1
ARTICLE II. CROSS COLLATERALIZATION, CROSS DEFAULT, AND
JOINT AND SEVERAL LIABILITY........................... 10
ARTICLE III. THE REVOLVING LOAN FACILITY
.......................... 10
ARTICLE IV. THE SEASONAL LINE OF CREDIT FACILITY
................. 16
ARTICLE V. THE TERM LOAN
FACILITY................................ 17
ARTICLE VI. CONDITIONS
PRECEDENT.................................. 18
ARTICLE VII. REPRESENTATIONS AND
WARRANTIES........................ 19
ARTICLE VIII. BORROWER'S AFFIRMATIVE
COVENANTS...................... 22
ARTICLE IX. BORROWER'S NEGATIVE
COVENANTS......................... 30
ARTICLE X. EVENTS OF
DEFAULT..................................... 33
ARTICLE XI.
REMEDIES.............................................. 36
ARTICLE XII. MISCELLANEOUS
PROVISIONS.............................. 38
SCHEDULE I COMPLIANCE
CERTIFICATE................................ S-1
SCHEDULE II ASSET RELEASE
SCHEDULE................................ S-3
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THIS AMENDED AND RESTATED MASTER CREDIT AGREEMENT (the
"Agreement") is
entered into as of October 31, 2002 by SEA PINES ASSOCIATES,
INC. and SEA PINES
COMPANY, INC., both corporations organized and existing under
the laws of the
State of South Carolina (collectively, the "Borrower") and
WACHOVIA BANK, N.A.,
a national banking association (the "Bank").
WHEREAS, the Borrower and the Bank desire to establish uniform
agreements,
obligations, covenants and other matters for all Obligations (as
defined below)
whether now existing or hereinafter arising, owed to the Bank
and to
collateralize and cross-default all said Obligations (as defined
below).
WHEREAS, the Borrower and the Bank also desire to re-establish,
re-state
and modify: (1) the Borrower's term loan facility in an amount
up to Fifteen
Million Nine Hundred Thirty-Nine Thousand Seven Hundred
Fifty-Eight Dollars
($15,939,758.00) (the "Term Loan Facility"); (2) the Borrower's
revolving line
of credit facility in an amount up to Eighteen Million Three
Hundred Thousand
Dollars ($18,300,000) (the "Revolving Line of Credit Facility");
and (3) the
Borrower's seasonal line of credit facility in an amount up to
Four Million Five
Hundred Thousand Dollars ($4,500,000) (the "Seasonal Line of
Credit Facility").
NOW, THEREFORE, in consideration of these premises and the
following
promises and undertakings, the Bank and the Borrower agree as
follows:
ARTICLE I. DEFINITIONS
1.01 The following terms shall have the following meanings
unless the
context otherwise expressly requires:
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"Adjusted LIBOR Index" for an applicable Interest Period shall
mean
a rate per annum equal to the quotient obtained by dividing (i)
the applicable
"LIBOR Index" for such Interest Period by (ii) 1.00 minus the
"Eurodollar
Reserve Percentage."
"Advance" means each advance, re-advance or loan made to the
Borrower in accordance with this Agreement in any amount
designated by the
Borrower.
"Applicable Margin" as to each Note shall mean One and
50/100
percent (1.50%) (150 basis points); provided, that for the
Revolving Line of
Credit Note and the Term Loan Note, the Applicable Margin shall
be adjusted to
the percentage indicated below based on the Borrower's DSC Ratio
(as defined in
Section 8.02 hereof):
<TABLE>
<CAPTION>
DSC Ratio Applicable Margin
--------- -----------------
<S> <C>
< 1.50 1.65% (165 basis points)
> 1.50 but <1.75 1.50% (150 basis points)
> 1.75 1.40% (140 basis points)
</TABLE>
The Applicable Margin shall be adjusted as of the first Business
Day of
each fiscal quarter based upon the quarterly compliance
certificate required by
Section 8.01(d) hereof and shall be, in the case of fiscal
quarters ending
January 31, April 30, and July 31, effective as of the first day
of the next
fiscal quarter succeeding receipt of the certificate, and in the
case of fiscal
quarters ending October 31, effective as of the first day of the
fiscal second
quarter (February 1).
Notwithstanding the foregoing, in the event the above required
certificate
is not received by the Bank within the time period required
hereby, the
Applicable Margin shall automatically be 1.50% for each of the
subsequent fiscal
quarters until such a certificate is timely received, after
which the Applicable
Margin shall be applied pursuant to the previous paragraph.
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"Approved Project" means development and construction
projects
undertaken by the Borrower located on the Secured Properties
which have been
underwritten and approved in writing by the Bank.
"Assignment Modification" means modification to the
outstanding
Assignments granted to the Bank modified so as to
cross-collateralize and secure
the Obligations, as well as provide for cross-default with the
Obligations and
other modifications.
"Assignments" mean the Assignment of Rents, Leases and Profits,
the
Collateral Assignment of Contracts, the Assignment of Tournament
Contracts and
Agreements, the Assignment of Permits and Licenses, the
Collateral Assignment of
Rights and Easements, the Collateral Assignment of Trademarks,
Trade Names,
Intangibles and Proprietary Rights, the Security Agreement, and
the Stock
Pledge, all dated November 17, 1987, as amended by the
Assignment Modification
and other amendments and all other assignments and pledges
granting security
interests to the Bank in the Secured Personalty.
"Collateral" means the Secured Properties and the Secured
Personalty
and any and all other security or collateral now or hereafter
pledged to the
Bank to secure the Obligations.
"Default Rate" shall mean the then applicable Adjusted LIBOR
Index
plus the Applicable Margin and an additional Two (2.00%) percent
(200 basis
points).
"Documents" mean this Agreement, the Notes, the Mortgages,
the
Assignments, the ISDA Agreement, the FMA Agreement and all other
documents,
instruments, financing statements, certificates and other items
deemed
reasonably necessary to document or evidence the Advances or the
Obligations,
all of which are incorporated herein as if set forth in
full.
"Eurodollar Reserve Percentage" means for any day that
percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the
Board of Governors of the Federal
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Reserve System (or any successor) for determining the maximum
reserve
requirement for a member bank of the Federal Reserve System in
respect of
"Eurocurrency liabilities" (as adjusted automatically on and as
of the effective
date of any change in the Eurodollar Reserve Percentage).
"FMA Agreement" means that certain agreement dated May 30,
1997
entered into by and between the Bank and the Borrower relating
to the automated
investing and borrowing feature of the Seasonal Line of Credit
Facility and any
modification, amendment or replacement of said Agreement.
"Facilities" mean the Term Loan Facility, the Revolving Line
of
Credit Facility and the Seasonal Line of Credit Facility, as set
forth herein.
"Facility Fees" means (i) such nonrecurring fees as may be
agreed
upon between the Borrower and the Bank from time to time, (ii) a
fee of
Twenty-Five Thousand ($25,000.00) Dollars paid annually
(November 1st)
commencing November 1, 2003 by the Borrower to the Bank for the
Revolving Line
of Credit Facility, and (iii) any additional fees charged for
any extension of
any of the Facilities; all of which fees shall be fully earned
when paid and
nonrefundable.
"Fiscal Year" means November 1 to October 31.
"GAAP" means generally accepted accounting principles set forth
in
the opinions and pronouncements of the Accounting Principles
Board of the
American Institute of Certified Public Accountants and
statements and
pronouncements of the Financial Accounting Standards Board.
"Hazardous Materials" mean and shall include, without
limitation,
any flammable explosives, radioactive materials, hazardous
materials, hazardous
wastes, hazardous or toxic substances, or related or similar
materials, asbestos
or any material containing asbestos, or any
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other hazardous substance or material as defined by any federal,
state or local
environmental law, ordinance, rule or regulation including,
without limitation,
the Comprehensive Environmental Response, Compensation, and
Liability Act of
1980, as amended, the Hazardous Materials Transportation Act, as
amended, the
Resource Conservation and Recovery Act, as amended, the South
Carolina Hazardous
Waste Management Act, the South Carolina Pollution Control Act,
and in the
regulations adopted and publications promulgated pursuant to any
such laws.
"ISDA Agreement" means any agreements and related schedules
and
transactions executed by and between the Borrower and the Bank
in connection
with any interest rate derivative product; including, but not
limited to, an
interest rate swap transaction, interest rate cap transaction,
interest rate
floor transaction, interest rate collar transaction or other
similar
transaction.
"Interest Period" shall mean each successive calendar month,
with
the first Interest Period being the period from the date of the
applicable Note
until the last day of that calendar month.
"Interest Rate" means the rate of interest as to any Advance
or
Obligation as specified in each of the Notes, this Agreement or
other Documents.
"LIBOR Index" shall mean for the Interest Period the rate per
annum,
at which deposits of United States dollars with maturities
comparable to the
applicable Interest Period, that appears on the display
designated as page
"3750" of the Telerate Service (or such other page as may
replace page 3750 of
that service or such other service or services as may be
designated by the
British Bankers' Association for the purpose of displaying
London Interbank
Offered Rates for U.S. dollar deposits), determined as of 11:00
a.m. (London
time) (rounded upward to the next higher of 1/10,000 of 1%), two
(2) business
days prior to the commencement of the applicable Interest
Period. If the Bank
should at any time determine that it is not possible to
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determine the LIBOR Index or that the LIBOR Index is no longer
available, then
the applicable Note(s) shall continue to bear interest at the
rate in effect
during the last Interest Period in which the LIBOR Index was
available or
determinable until the beginning of the next Interest Period in
which the LIBOR
Index is available or determinable.
"Material Agreement" means any agreement, lease, contract or
other
instrument creating liabilities (whether actual or contingent)
or revenues
(whether actual or projected) for the Borrower in excess of
$250,000.00 within
any Fiscal Year.
"Material Adverse Effect" means an event or action which
would
impair the ability of the Borrower and its Subsidiaries on a
consolidated basis
to carry on its business substantially as now conducted or would
materially and
adversely affect the financial condition, business or operations
of the Borrower
and its Subsidiaries on a consolidated basis or has a material
adverse impact on
the intended uses or the valuation of the Collateral.
"Modification Fee" means a fee of Seventy-Five Thousand
($75,000.00)
Dollars which shall be due and payable upon execution of this
Agreement, all of
which fee shall be fully earned when paid and nonrefundable.
"Mortgage Modifications" mean modifications to the
outstanding
Mortgages granted to the Bank modified to extend the maturity
dates,
cross-collateralize and secure the Obligations, as well as
provide for
cross-default with the Obligations and other modifications.
"Mortgages" mean the Bank's first lien mortgage, security
agreement
and fixture filing(s) as applicable encumbering the Secured
Properties (as
hereinafter defined), as modified by the Mortgage Modifications,
including,
without limitation, the following:
(i) Mortgage, Security Agreement and Financing Statement
dated
November 17, 1987 as amended;
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(ii) Mortgage and Security Agreement dated January 17, 1992
as
amended; and
(iii) Mortgage, Security Agreement and Financing Statement
dated
October 15, 1993 as amended.
"Notes" mean all promissory notes of the Borrower or any
Subsidiary,
whether now existing or hereafter arising, evidencing the
Obligations as
appropriately completed, duly authorized and issued to the Bank,
including
without limitation the following:
(i) $18,300,000 Second Amended and Restated Revolving Line
of
Credit Note of the Borrower dated as of October 31, 2002 (the
"Revolving Line of
Credit Note");
(ii) $4,500,000 Second Amended and Restated Seasonal Line of
Credit Note of the Borrower dated as of October 31, 2002 (the
"Seasonal Line of
Credit Note"); and
(iii) $15,939,758 Second Amended and Restated Term Note of
the
Borrower dated as of October 31, 2002 (the "Term Note").
"Obligations" means the joint and several indebtedness evidenced
by
the Documents, including but not limited to the Notes, ISDA
Agreement, FMA
Agreement and any and all other indebtedness or liabilities of
the Borrower or
any Subsidiary to the Bank, now or hereafter incurred, however
and whenever
evidenced, whether direct or indirect, absolute or contingent,
together with all
interest accrued thereon.
"Permitted Encumbrances" mean any third-party lien, security
interest, charge or encumbrance upon the Collateral created or
existing with the
express written consent of the Bank, any purchase money debt for
equipment, or
operating leases, entered into in the ordinary course of
business.
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"Project Funds" means the maximum amount of funds designated
in
writing by the Bank as available to be disbursed from the
Revolving Line of
Credit Facility for the development and construction of Approved
Project(s);
provided in no event will Project Funds exceed the amounts
specified in the
Development Cost Analysis (as defined in Section 3.05) without
the prior written
consent of the Bank or except as provided in Section 3.10.
"Project Completion" means the determination by the Bank of
the
completion of an Approved Project based upon receipt by the Bank
of the
following: (i) an affidavit from the contractor(s) that all
labor and materials
supplied in connection with the Approved Project have been (or
will with such
final disbursement be) fully paid for and that no rights exist
on the part of
any party to claim a lien against the Approved Project or any
portion thereof
and/or other evidence that arrangements satisfactory to the Bank
have been made
with respect to any such rights or potential claims or
claimants; (ii) a
certificate from the record architect that the Approved Project
has been
constructed and completed in substantial accordance with the
Plans and
Specifications; (iii) a copy of the certificate of occupancy or
other document
from appropriate governmental authority evidencing that all the
improvements
have been completed in accordance with the applicable
governmental requirements;
and (iv) a final as-built survey showing the location of the
completed
improvements.
"Revolving Line of Credit Note Maturity Date" means November 1,
2007
or as extended pursuant to any future commitment letter or
modification hereof
executed by the Borrower and the Bank.
"Seasonal Line of Credit Note Maturity Date" means November 1,
2007
or as extended pursuant to any future commitment letter or
modification hereof
executed by the Borrower and the Bank.
8
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"Secured Personalty" means all receivables, related contracts
and
other personal property now or hereafter pledged to the Bank
pursuant to the
Assignments or other Documents.
"Secured Properties" mean the real properties, fixtures
and/or
facilities as described in the Mortgages.
"Subsidiary" or "Subsidiaries" means Sea Pines Real Estate
Company,
Inc., Fifth Golf Course Club, Inc., and any other wholly owned
subsidiary,
entity or enterprise of the Borrower, excepting, however, Sea
Pines Company,
Inc. as Borrower.
"Term Note Maturity Date" means November 1, 2008 or as
extended
pursuant to any future commitment letter or modification hereof
executed by the
Borrower and the Bank.
ARTICLE II. CROSS COLLATERALIZATION, CROSS DEFAULT
AND JOINT AND SEVERAL LIABILITY
2.01 All Obligations, including specifically, without
limitation, all
Notes, are secured by the Collateral given by the Borrower or
its Subsidiaries
to the Bank.
2.02 The Collateral given by the Borrower or any Subsidiary
pursuant to
the Mortgages, the Assignments or other Documents shall secure
and
cross-collateralize all Obligations, including, without
limitation, all Notes,
owed to the Bank whether now outstanding or arising in the
future.
2.03 An Event of Default or declaration of default under this
Agreement or
any of the Obligations, including specifically, without
limitation, the Notes,
after the expiration of any applicable grace period contained
therein, shall
constitute a default under all other Notes, all Documents,
Mortgages or other
instruments securing said Notes and shall entitle the Bank, at
its option to
exercise all rights and remedies thereunder.
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2.04 An Event of Default or declaration of default under any of
the Notes,
Documents or Mortgages or other instruments after the expiration
of any
applicable grace period contained therein, securing said Notes
shall constitute
a default under this Agreement.
2.05 Each of Sea Pines Associates, Inc. and Sea Pines Company,
Inc. is
jointly and severally liable for all of the Obligations,
including specifically,
without limitation, all Notes owed to the Bank, whether now
outstanding or
arising in the future.
ARTICLE III. THE REVOLVING LINE OF CREDIT FACILITY
3.01 Subject to the terms and conditions of this Agreement, the
Bank
agrees to lend to the Borrower and the Borrower agrees to borrow
from the Bank
up to EIGHTEEN MILLION, THREE HUNDRED THOUSAND ($18,300,00.00)
DOLLARS on a
revolving line of credit basis (the "Revolving Line of Credit
Facility").
Advances under the Revolving Line of Credit Facility are to be
used only as
Project Funds for the development, construction and completion
of Approved
Projects or for the Borrower's general business purposes.
3.02 The Revolving Line of Credit Note shall bear interest from
the date
of the note at a rate per annum equal to the Adjusted LIBOR
Index for the
Interest Period plus the Applicable Margin.
3.03 So long as there exists no Event of Default (as herein
defined), the
Bank will disburse the Project Funds out of the Revolving Line
of Credit
Facility for Approved Project construction costs in proportion
to progress of
construction (less applicable retainage) and as to costs other
than construction
costs as such costs are incurred, provided the obligation of the
Bank to
disburse proceeds shall be subject to the Bank's reservation of
the right to
retain availability under this Facility of funds that the Bank
deems sufficient
to complete and pay for the Approved
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Project(s). Disbursements of Project Funds shall be limited to
one (1) per month
unless otherwise expressly permitted by the Bank, shall be made
by wiring or
depositing the same to an account of the Borrower, or at the
Bank's election, by
the issuance of one or more checks payable to the Borrower, the
Borrower's
counsel, the general contractor, subcontractors, materialmen, or
any one or more
of them.
3.04 Any material changes in the scope of an Approved Project,
the
Development Cost Analysis (as defined), the construction
contract for the
Approved Project, as approved by the Bank (the "Construction
Contract") or the
final plans and specifications for the Approved Project as
approved by the Bank
(the "Plans and Specifications") shall require the prior written
approval of the
Bank with the Bank having the right to make corresponding
changes to the amount
of designated Project Funds.
3.05 Prior to any disbursement hereunder of Project Funds and in
addition
to other requirements set forth in this Agreement, the Bank
shall receive a cost
breakdown for the planned project approved by the Bank on the
Bank's form,
certified by the Borrower to be correct to the best of the
Borrower's knowledge,
showing the costs of the Approved Project and the sources for
the payment of
such costs (the "Development Cost Analysis").
3.06 Each request for disbursement of the Project Funds for work
performed
under the Construction Contract shall be accompanied by (i) a
written request of
the Borrower stating the amount requested and (ii) an
appropriate AIA Form G702,
G702A or G703, signed by the contractor(s) for the Approved
Project, the
architect of record and the Borrower or other similar
documentation satisfactory
to the Bank and shall in all cases be limited to items and
certifiable costs set
forth in the Development Cost Analysis.
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3.07 The Borrower will begin construction of the Approved
Project in a
timely manner and will make reasonable efforts to continually
prosecute the work
in accordance with the applicable Plans and Specifications. The
work shall be
performed in conformity with the Plans and Specifications and in
compliance with
building and zoning codes and all other applicable legal
requirements and
restrictions. The Borrower will keep the Secured Properties free
from all liens
for services, labor and materials other than Permitted
Encumbrances and as
permitted by Section 9.01 (a).
3.08 The Bank shall have the right, during construction, to
inspect the
Approved Project or to cause the construction to be inspected by
an independent
inspecting representative. Should there occur any discrepancy in
quantity or
quality of workmanship in connection with the construction of
the Approved
Project, the Bank shall be relieved of the obligation to make an
Advance of
Project Funds until such time as the discrepancy shall have been
corrected to
the satisfaction of the Bank (and any independent inspecting
representative
appointed by the Bank pursuant to this Section). The reasonable
costs and
expenses incurred in connection with the use of any independent
inspecting
representative shall be paid by the Borrower.
3.09 Prior to any disbursement of Project Funds, the Bank must
have
received, in addition to other requirements set forth in this
Agreement, the
following as to each Approved Project:
(a) Evidence satisfactory to the Bank that the Plans and
Specifications have been approved by the Borrower and all
government agencies
having jurisdiction that require approval.
(b) Copies of the development, grading, building and any
other
governmental permits and approvals required for
construction.
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(c) Written evidence from the appropriate governmental
authority
(ies) that the Approved Project and its intended use are in
compliance with all
applicable zoning ordinances and land use laws and
regulations.
(d) A certificate from the record architect (i) that the
Approved
Project if constructed and completed in substantial accordance
with the Plans
and Specifications will comply with the applicable ANSI Standard
under the Fair
Housing Act (as amended) and applicable regulations, if
applicable, and/or with
the requirements of Title III of the Americans with Disabilities
Act of 1990 (as
amended) and the implementing physical accessibility regulations
promulgated
thereunder by the Department of Justice and the Americans with
Disabilities Act
Accessibility Guidelines (ADAAG) associated therewith, if
applicable; (ii) that
all required licenses, permits and other governmental approvals
for the
construction of the Approved Project have been issued; and (iii)
that the
Approved Project, if completed in accordance with the final
Plans and
Specifications, will comply with all zoning, fire and building
code, etc.
statutes and regulations to which the Approved Project is
subject.
(e) A current survey prepared, certified and sealed by a
surveyor
satisfactory to the Bank showing, among other things, the
location of any
existing or proposed improvements, any setback lines or building
lines, the
location of all easements and rights-of-way and all matters
affecting title, to
the extent such matters can be shown, and any jurisdictional
wetlands area. The
survey shall also be revised periodically during construction,
as required by
the Bank, to show footings, foundations, easements,
rights-of-way, building
setback lines and progress in construction.
(f) A collateral assignment of the Construction Contract and
Plans
and Specifications.
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(g) An appraisal of the Approved Project satisfactory in all
respects to the Bank.
3.10 Notwithstanding the foregoing relating to the disbursement
of Project
Funds for construction purposes, the Bank reserves the right
based on the
complexity or scope of each Approved Project to require
additional matters in
order to monitor construction of the Approved Project and/or to
waive compliance
with, or reduce the extent of, the aforesaid provisions should
circumstances so
warrant.
3.11 Upon the occurrence of an Event of Default, the Bank may,
at its
option and in lieu of resorting to any other remedy available to
it and without
the appointment of a receiver for the Approved Project or the
Borrower, take
possession of the Approved Project and all materials, tools,
machinery and other
equipment used for said project or in possession of the Borrower
being used in
connection with and in the construction of the project, and, in
the name of and
for the account of the Borrower, may complete the improvements
either in
accordance with the Plans and Specifications or in accordance
with such change
or changes in the Plans and Specifications as may be considered
necessary or
desirable by the Bank and may take such other and further action
as may be
required to achieve completion of the Approved Project. For such
purposes, the
Bank may use any funds of the Borrower at any time in the hands
of the Bank by
deposit or otherwise, including the undisbursed proceeds of the
Revolving Line
of Credit Facility. Any money advanced by the Bank for such
purposes shall be
payable by the Borrower upon demand, shall bear interest at the
rate set forth
in the Revolving Line of Credit Note, and its payment shall be
secured by the
Mortgages and other Documents. The Bank, however, shall be under
no obligation
to complete the Approved Project, and the Bank's action in this
respect shall be
wholly at its option.
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3.12 The Revolving Line of Credit Facility and all Advances
thereunder
shall be repaid by the Borrower to the Bank in strict accordance
with the terms
and provisions as set forth in this Agreement and the Revolving
Line of Credit
Note.
3.13 Funds from the Revolving Line of Credit Facility may be
borrowed,
reborrowed, paid and repaid throughout the term at the
Borrower's discretion,
subject to and as limited herein.
3.14 In no event shall the Bank be under any obligation to make
an Advance
after the occurrence of an Event of Default or the Revolving
Line of Credit Note
Maturity Date for the occurrence of an event which with notice
or the passage of
time or both would constitute an Event of Default, and all
amounts due and owing
shall be paid on said Revolving Line of Credit Note Maturity
Date.
3.15 Interest on the funds drawn by the Borrower under this
Revolving Line
of Credit Facility shall be calculated on the basis of actual
days elapsed in a
360-day year based on the Interest Rate set forth in the
Revolving Line of
Credit Note.
ARTICLE IV. THE SEASONAL LINE OF CREDIT FACILITY
4.01 Subject to the terms and conditions of this Agreement, the
Bank
agrees to lend to the Borrower and the Borrower agrees to borrow
from the Bank
up to FOUR MILLION, FIVE HUNDRED THOUSAND ($4,500,000.00)
DOLLARS on a seasonal
line of credit basis (the "Seasonal Line of Credit
Facility").
4.02 The Seasonal Line of Credit Note shall bear interest from
the date of
the note at a rate per annum equal to the Adjusted LIBOR Index
for the Interest
Period plus the Applicable Margin.
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4.03 Advances under the Seasonal Line of Credit Facility are to
be used
only for the Borrower's general working capital purposes and
such cash needs as
relate to the Borrower's operations.
4.04 The Seasonal Line of Credit Facility and all Advances
thereunder
shall be repaid by the Borrower to the Bank in strict accordance
with the terms
and provisions as set forth in this Agreement, the Seasonal Line
of Credit Note
and the FMA Account Agreement.
4.05 Funds from the Seasonal Line of Credit Facility may be
borrowed,
reborrowed, paid and repaid throughout the term at the
Borrower's discretion,
subject to and as limited herein.
4.06 In no event shall the Bank be under any obligation to make
an Advance
after the occurrence of an Event of Default or the Seasonal Line
of Credit
Maturity Date or after the Bank has given notice that the
Seasonal Line of
Credit Note will be called on a "Call Date" (as defined in the
Seasonal Line of
Credit Note) subsequent to the first day of March preceding the
Call Date or the
occurrence of an event which with notice or the passage of time
or both would
constitute an Event of Default, and all amounts due and owing
shall be paid on
said Seasonal Line of Credit Maturity Date or Call Date or as
otherwise provided
in the Seasonal Line of Credit Note.
4.07 Interest on the funds drawn by the Borrower under this
Seasonal Line
of Credit Facility shall be calculated on the basis of actual
days elapsed in a
360-day year based on the Interest Rate set forth in the
Seasonal Line of Credit
Note.
ARTICLE V. THE TERM LOAN FACILITY
5.01 Subject to the terms and conditions of this Agreement, the
Bank
agrees to lend to the Borrower and the Borrower agrees to borrow
from the Bank
up to Fifteen Million Nine
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Hundred Thirty-Nine Thousand Seven Hundred Fifty-Eight Dollars
($15,939,758.00)
on a term basis (the "Term Loan Facility").
5.02 The Term Note shall bear interest from the date of the note
at a rate
per annum equal to the Adjusted LIBOR Index for the applicable
Interest Period
plus the Applicable Margin.
5.03 The Borrower acknowledges that the balance of the Term Loan
Facility
is $[$15,939,758], as of the date hereof. No re-Advances or
additional Advances
will be made under the Term Loan Facility. All amounts due and
owing on the Term
Loan Facility shall be paid on the Term Note Maturity Date.
5.04 The Term Loan Facility and all Advances thereunder shall be
repaid by
the Borrower to the Bank in strict accordance with the terms and
provisions as
set forth in this Agreement and the Term Note, provided, that
the Bank, in its
sole discretion, may agree to reduce or delay certain principal
payments
required by the Term Note should Advances of Project Funds be
delayed or reduced
below projected amounts.
5.05 Interest on the funds drawn by the Borrower under this Term
Loan
Facility shall be calculated on the basis of actual days elapsed
in a 360-day
year based on the Interest Rate set forth in the Term Note.
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ARTICLE VI. CONDITIONS PRECEDENT
6.01 The Bank shall not be required to make any Facility
available nor
make any initial or subsequent Advance thereunder unless each of
the following
conditions have been fulfilled to the Bank's satisfaction on or
before the date
of each Advance:
(a) The Borrower shall deliver to the Bank the Documents
duly
executed and delivered in accordance with all agreed-upon terms
and provisions
including appropriate organizational documents and authorization
for the
Borrower to enter into the Documents;
(b) The Borrower shall pay all fees and costs due the Bank,
including, without limitation, any Facility Fee, the
Modification Fee, the
Bank's attorney's fees and all other fees and costs payable
pursuant to the
Documents;
(c) Upon the Bank's request with respect to any particular
aspect of
the Borrower's financial condition, business or prospects, the
Borrower shall
provide evidence satisfactory to the Bank as to such request
that there has been
no Material Adverse Effect on the financial condition of the
Borrower from that
reflected in the annual Financial Statements for the year ended
October 31,
2001, audited by Ernst and Young, LLP nor in any subsequent
Financial Statements
submitted to the Bank;
(d) The Borrower shall remain in substantial compliance with
all
covenants contained in the Documents, excepting those covenants
set forth in
Section 8.02 herein in which specific compliance will be
required, all
representations and warranties made to the Bank in the Documents
shall remain
valid and accurate in all material respects and no Event of
Default shall have
occurred nor any event which with notice or lapse of time or
both would
constitute an Event of Default; and
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(e) The Borrower shall deliver such other papers and documents
as
may be reasonably required in the opinion of the Bank's counsel
to comply with
the conditions of this Agreement.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
7.01 To induce the Bank to enter into this Agreement, to make
the Advances
provided for herein and to extend credit evidenced by the
Obligations, the
Borrower represents and warrants to the Bank that:
(a) Each Borrower is a corporation duly organized, validly
existing,
and in good standing under the laws of the State of South
Carolina; each
Borrower has the corporate power and authority to own its
properties and assets
and to carry on its business as now being conducted and is
qualified to do
business in every jurisdiction in which, by reason of the
character of its
business, it is required to qualify as a foreign corporation and
in which
failure to be so qualified would have a Material Adverse Effect;
the Borrower
has the corporate power to borrow hereunder and execute and
perform all the
Documents, and when executed and delivered, the Documents shall
be valid and
binding obligations of each Borrower enforceable in accordance
with their terms;
(b) The execution, delivery and performance of the Documents and
the
borrowings thereunder by the Bo
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