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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 payment past due permitted by applicable law, or the maximum
amount if not expressed as a percentage. If this
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