EXHIBIT 10.1
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RBC
Centura
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Commercial Promissory Note
(SD-L&S)
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$486,000.00
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Greenville, South
Carolina
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February 9, 2007
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Original
Loan
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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 Four
Hundred Eighty-Six Thousand and No/100 Dollars ($486,000.00),
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 the fixed
rate of seven and eighty-five one hundredths percent
(7.85%)
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 (i) of 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. 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 interest component shall
be payable with principal and the payment set forth in
Section 2.2 below includes both principal and
interest.
Section 2.2.
Principal Payment Terms; Maturity Date . Principal and
interest shall be payable in thirty five (35) equal
consecutive monthly payments, based on a fifteen (15) year
amortization, commencing on March 9, 2007, and continuing on
the same day of each calendar month thereafter until
January 9, 2010, with a final, thirty six (36
th
) payment due
on February 9, 2010 (herein referred to as the “Maturity
Date”), which final payment shall be equal to the entire
balance of principal, interest, fees, premiums, charges and costs
and expenses then outstanding on this Note.
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 entered into an amended and
restated loan and security agreement dated January 2, 2007
(“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 payment past due permitted
by applicable law, or the maximum amount if not expressed as a
percentage. If this Note is not paid in full whenever it becomes
due and payable, Borrower agrees to pay all costs and expenses of
collection, including reasonable attorneys’ fees. Borrower
hereby stipulates that reasonable attorneys’ fees shall be
fifteen percent (15%) of the outstanding balance (principal,
interest, fees, premiums, charges and costs and expenses) owing
under this Note after default and referral to an attorney not a
salaried employee of Bank.