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EXHIBIT
10.2
Customer No.
Loan No.
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Centura |
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Amended and
Restated
Commercial Promissory
Note
(SD-L&S)
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7,000,000.00
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Greenville, South Carolina |
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September 14, 2007 |
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Amended and Restated Note
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FOR VALUE RECEIVED, the undersigned
(whether one or more, “Borrower”) promises to pay to
RBC CENTURA BANK (“Bank”), or order, the maximum sum of
Seven Million and no/100 Dollars ($7,000,000.00), or so much
thereof as shall have been disbursed from time to time and remains
unpaid, together with interest at the rate and payable in the
manner hereinafter stated. Principal and interest shall be payable
at any banking office of Bank in the city or town indicated above,
or such other place as the holder of this Note may designate. This
Note evidences a revolving line of credit and during the term of
this Note, so long as Borrower shall not be in default hereunder,
Borrower shall have the right to borrow, make payments upon, and
re-borrow monies hereunder; provided , however, that at no
time shall the outstanding principal balance of this Note exceed
the sum of Seven Million and no/100 ($7,000,000.00)
Dollars.
Article I. Interest
Rate.
Section 1.1. Rate of Accrual .
Interest will accrue on the unpaid principal balance at the rate
set forth in Section 1.2.1. until maturity of this
Note, whether such maturity occurs by acceleration or on the
Maturity Date. Interest will accrue on any unpaid balance owing
under this Note, whether principal, interest, fees, premiums,
charges or costs and expenses, after maturity at the rate set forth
in Section 1.2.2 . All accrual rates of interest under
this Note will be contract rates of interest, whether a pre-default
rate or a default rate, and references to contract rates in any
loan documents executed and delivered by Borrower or others to Bank
in connection with this Note shall be to such contract
rates.
Section 1.2. Interest Rates
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1.2.1. Pre-Default
Rate . Subject to the provisions of Section 1.2.2
below, interest payable on this Note per annum will accrue at two
hundred fifty basis points 2.50%) plus the LIBOR Base
Rate. The “LIBOR Base Rate” is the London Interbank
Offer Rate for United States Dollars for a term of one month which
appears on Telerate Page 3750, Bloomberg Professional Screen BBAM
(or any generally recognized successor method or means of
publication) as of 11:00 a.m., London time, two (2) London
business days prior to the day on which the rate will become
effective. The rate for the first month or part thereof will
initially become effective on the date of the Note as shown on the
face hereof. Thereafter, the rate will change and a new rate will
become effective on the first calendar day of each succeeding
month. If for any reason the London Interbank Offer Rate is not
available, then the “LIBOR Base Rate” shall mean the
rate per annum which banks charge each other in a market comparable
to England’s Eurodollar market on short-term money in U.S.
Dollars for an amount substantially equivalent to the principal
amount due under this Note as determined at 11:00 A.M., London
time, two (2) London business days prior to the day on which
the rate will become effective, as determined in the Bank’s
sole discretion. Bank’s determination of such interest rate
shall be conclusive, absent manifest error.
1.2.2. Default Rate .
Upon the nonpayment of any payment of interest described herein,
Bank, at its option and without accelerating this Note, may accrue
interest on such unpaid interest at a rate per annum
(“Default Rate”) equal to the lesser of (i) the
maximum contract rate of interest that may be charged to and
collected from Borrower on the loan evidenced by this Note under
applicable law or (ii) five percent (5.0%) plus the
pre-default
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interest rate otherwise applicable
hereunder, as set forth in Section 1.2.1 . After
maturity of this Note, whether by acceleration or otherwise,
interest will accrue on the unpaid principal of this Note, any
accrued but unpaid interest and all fees, premiums, charges and
costs and expenses owing hereunder at the Default Rate until this
Note is paid in full, whether this Note is paid in full,
pre-judgment or post-judgment.
1.2.3. Variable Rate;
Calculation of Interest .
1.2.3.1. Variable Rate
. This is a variable rate note. Any change in the rate of interest
payable under this Note will equal the change in the variable rate
index to which such rate is tied, but the rate at which interest
accrues under this Note shall never exceed the maximum contract
rate which may be charged to and collected from Borrower on the
loan evidenced by this Note under applicable law. Bank shall have
no obligation to notify Borrower of adjustments in the rate of
interest payable under this Note. Adjustments to the rate of
interest will be effective on the date of change in the variable
rate index.
1.2.3.2. Calculation of
Interest . All interest payable under this Note shall accrue
daily on the basis of the actual number of days elapsed and a year
of three hundred sixty (360) days. In computing the number of
days during which interest accrues, the day on which funds are
initially advanced shall be included regardless of the time of day
such advance is made, and the day on which funds are repaid shall
be included unless repayment is credited prior to close of
business. Payments in federal funds, immediately available in the
place designated for payment, received by Bank prior to 2:00 p.m.
local time at said place of payment, shall be credited as if
received prior to close of business on the day the funds are
immediately available; while other payments, at the option of Bank,
may not be credited until such payments are immediately available
to Bank, in federal funds, in the place designated for payment,
prior to 2:00 p.m. local time at said place of payment on a day on
which Bank is open for business.
Article II. Payment
Terms.
Section 2.1. Interest Payment
Terms . Payments under this Note include an interest component
and a principal component. The principal component is set forth in
Section 2.2 below. The interest component shall be paid
as follows: interest shall be payable monthly, in arrears,
beginning October 1, 2007 and continuing on the same calendar
day of each consecutive month thereafter until the Maturity Date,
when all accrued but unpaid interest is due and payable in
full.
Section 2.2. Principal Payment
Terms; Maturity Date . As stated in Section 2.1
above, payments under this Note include an interest component and a
principal component. The interest component is set forth in
Section 2.1 above. The principal component shall be
paid as follows: Principal and interest shall be payable in one
single payment on June 30, 2009 (herein referred to as the
“Maturity Date”).
Section 2.3. Prepayment .
This Note may be prepaid in whole, or in part at any time without
penalty.
Section 2.4. Application of
Payments . All payments made on this Note shall be applied
first to payment of all late fees, charges, premiums and costs and
expenses due but unpaid under this Note, then to accrued but unpaid
interest and finally to principal, in the inverse order of the
payment dates therefor, unless Bank determines in its sole
discretion to apply payments in a different order or applicable law
requires a different application of payments. The partial
prepayment of this Note, if permitted, shall not result in a
payment holiday or any other deferral of any regularly scheduled
payments under this Note, all of which shall be made as and when
the same are scheduled to be paid.
Article III. Loan Agreement
and Security.
Section 3.1. Loan Agreement . The
loan evidenced by this Note was made pursuant to a commitment
letter (“Commitment Letter”) from Bank to Borrower
dated September 10, 2007. Borrower and Bank have entered into
a Second Amended and Restated Loan and Security Agreement dated
September 14, 2007 (“Loan and Security
Agreement”). Borrower shall perform and abide by, as and when
so required, each and all of the covenants, terms and conditions
imposed upon or applicable to Borrower in the Loan and Security
Agreement and all security
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documents and other agreements
referenced in the Loan and Security Agreement. In the event of any
conflict between the terms of this Note and the terms of the Loan
and Security Agreement, the terms of the Loan and Security
Agreement shall prevail, except that the terms of this Note shall
prevail with respect to the payment obligations of
Borrower.
Section 3.2. Security Documents .
This Note is secured by (1) the Loan and Security Agreement,
(2) the security documents and other supporting obligations
identified in the Loan and Security Agreement, (3) the
security documents and other supporting obligations which reference
that they secure this Note or the Loan and Security Agreement,
(4
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