Exhibit 10.7
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RBC
Centura
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Commercial Promissory
Note
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(SD-L&S)
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$5,500,000.00
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Greenville, South
Carolina
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January 2, 2007
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Master
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 sum of Five
Million Five Hundred Thousand and No/100
Dollars ($5,500,000.00), 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.
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 .
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
and 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 rate of interest that may be charged to and collected on
commercial loans without violating applicable law or (ii) five
percent (5.0%) plus the pre-default 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 monthly, in arrears, beginning February 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 on May 30, 2007 (herein
referred to as the “Maturity Date”), when one payment
of the entire balance of principal, interest, fees, premiums,
charges and costs and expenses then outstanding on this Note shall
be due and payable in full.
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 . Borrower and Bank have entered into an amended and
restated loan and security agreement dated of even date herewith
(“Amended and Restated 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 Amended and Restated Loan and
Security Agreement and all security documents and other agreements
referenced therein. This Note shall be subject to the terms and
conditions of such Amended and Restated Loan and Security
Agreement, and if any terms or conditions of these two agreements
conflict, the terms and conditions of the Amended and Restated Loan
and Security Agreement shall prevail.
Section 3.2. Security
Documents . This Note is secured by (1) the Amended and
Restated Loan and Security Agreement, (2) the security
documents and other supporting obligations identified in the
Amended and Restated
Loan and Security Agreement, (3) the
security documents and other supporting obligations which reference
that they secure this Note or the Amended and Restated Loan and
Security Agreement, (4) any security documents and other
supporting obligations which reference that they secure all
indebtedness or other obligations owing from time to time by
Borrower to Bank, and (5) any security documents and other
supporting obligations which reference that they secure all
indebtedness from time to time owing from Borrower to Bank other
than consumer credit as defined under the Federal Reserve
Board’s Regulation Z (Truth-in-Lending) (12 CFR 226 et seq.)
(“security documents”).
Article IV. Default and
Acceleration.
Section 4.1. Late Charges
and Expenses . Borrower agrees to pay, upon demand by Bank or
if demand is not sooner made, on maturity of this Note, whether
such maturity occurs by acceleration or on the Maturity Date, for
each payment past due for fifteen (15) or more calendar days,
a late charge in an amount equal to the lesser of (1) four
percent (4%) of the amount of the payment past due or
(2) the maximum percentage of the paym