Exhibit 10(h)
[WACHOVIA LOGO]
This instrument was prepared by and is to be returned to Xxxxxx X. Xxxxxxxxxx,
whose address is Haynsworth Xxxxxxx Xxxx, P.A., X.X. Xxx 00000, Xxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000.
SECOND MORTGAGE MODIFICATION AND RE-STATEMENT AGREEMENT
("AGREEMENT")
(BOOK 499, PAGE 980)
STATE OF SOUTH CAROLINA )
)
COUNTY OF BEAUFORT )
THIS SECOND MORTGAGE MODIFICATION AND RE-STATEMENT AGREEMENT,
made as of the 31st day of October, 2002 by and among WACHOVIA BANK, N.A.
(formerly known as WACHOVIA BANK OF SOUTH CAROLINA, N.A. and formerly known as
THE SOUTH CAROLINA NATIONAL BANK) (the "Mortgagee"), whose address is X.X. Xxx
000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Real Estate Lending, and SEA
PINES ASSOCIATES, INC. and SEA PINES COMPANY, INC. (collectively, the
"Mortgagor").
WITNESSETH:
WHEREAS, the Mortgagor has made and issued certain notes as
follows:
1. That certain Second Amended and Restated Term Note of
the date hereof evidencing an indebtedness of FIFTEEN MILLION, NINE HUNDRED
THIRTY-NINE THOUSAND, SEVEN HUNDRED FIFTY-EIGHT and NO/100 DOLLARS
($15,939,758.00); and
2. That certain Second Amended and Restated Seasonal
Line of Credit Note of the date hereof evidencing an indebtedness of FOUR
MILLION, FIVE HUNDRED THOUSAND and NO/100 DOLLARS ($4,500,000.00); and
3. That certain Second Amended and Restated Revolving
Line of Credit Note of the date hereof evidencing an indebtedness of EIGHTEEN
MILLION, THREE HUNDRED THOUSAND and NO/100 DOLLARS ($18,300,000.00);
which notes, as amended and restated, are collectively referred to herein as the
"Notes" and are made a part hereof by reference as if fully set out herein
verbatim; and
WHEREAS, the Mortgagor to partially secure the indebtedness
evidenced by the Notes executed and delivered a Mortgage and Security Agreement
dated January 17, 1992, as amended from time to time, and recorded in the RMC
Office or Clerk of Court, as appropriate (the "Registry") for Beaufort County in
Book 499, Page 980, made a part hereof by this reference as fully as if set out
herein verbatim (such document, as heretofore amended, being herein referred to
as the "Mortgage"); and
WHEREAS, the Mortgagor and Mortgagee have entered into that
certain Amended and Restated Master Credit Agreement dated the same date hereof
pursuant to which the Mortgagor and Mortgagee have established uniform
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agreements, obligations, covenants and other matters governing the Obligations,
as defined in said Agreement, whether now existing or hereinafter arising, owed
to the Mortgagee (the "Amended and Restated Master Credit Agreement"); and
WHEREAS, the Mortgagor and Mortgagee desire to re-establish,
re-state and modify the Facilities as defined in the Amended and Restated Master
Credit Agreement; and
WHEREAS, the Mortgagor and Mortgagee have agreed to make
certain modifications to the Mortgage in order to secure, collateralize and
cross-default all Obligations, as defined in the Amended and Restated Master
Credit Agreement; and
WHEREAS, the Mortgagor has consented to waive Mortgagor's
appraisal rights as set forth in S.C. Code Xxx. Section 29-3-680; and
WHEREAS, the Mortgagor has been informed in writing of the
requirement of the waiver of appraisal rights before this loan modification
transaction closed and has consented thereto as part of the Mortgagor's
inducement of Mortgagee to enter into the loan modification transaction
described herein; and
WHEREAS, the Mortgagee, as holder and owner of the Mortgage,
and the Mortgagor mutually desire to modify and amend the provisions of the same
in the manner hereinafter set out, it being specifically understood that except
as herein modified and amended, the terms and provisions of the Mortgage shall
remain unchanged and continue in full force and effect as therein written;
NOW, THEREFORE, the Mortgagee and the Mortgagor, in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
the mutual covenants herein contained do hereby agree that the Mortgage should
be, and the same hereby are modified and amended as follows:
1. The provisions of the Notes and the Amended and
Restated Master Credit Agreement, are incorporated in the Mortgage as fully as
if set out therein verbatim.
2. Notwithstanding anything to the contrary contained in
the Notes and Mortgage, and any amendments thereto, the Mortgage is hereby
amended to include as additional Events of Default the following:
a. the occurrence of an Event of Default under
the Amended and Restated Master Credit Agreement, or
b. a default by the Mortgagor on any of the
Obligations, as defined in the Amended and Restated Master Credit Agreement.
3. Any reference contained in the Mortgage, as amended
herein, to the "Credit Agreement," the "Revolving Credit Agreement," the "1987
Credit Agreement" or any other loan or credit agreement shall hereinafter be
deemed to be a reference to the Amended and Restated Master Credit Agreement.
4. The final payment of the Notes shall be the maturity
dates as respectively set out in the Amended and Restated Master Credit
Agreement for each of the Notes, but no later than November 1, 2008.
5. Any reference contained in the Notes or the Mortgage,
as amended herein, to the Mortgage shall hereinafter be deemed to be a reference
to such document as amended hereby. In amplification thereof, the Mortgage, as
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amended hereby, shall secure the Obligations including, without limitation, the
Notes, and any further modifications, renewals or extensions thereof.
IT IS MUTUALLY AGREED by and between the parties hereto that
this Agreement shall become a part of the Mortgage by reference and that nothing
herein contained shall (i) impair the security now held for the indebtedness
represented by the Notes, (ii) waive, annul, vary or affect any provision,
condition, covenant or agreement contained in the Notes and the Mortgage except
as herein amended, or (iii) affect or impair any rights, powers or remedies
under the Notes and the Mortgage as hereby amended. Furthermore, the Mortgagee
does hereby reserve all rights and remedies it may have as against all parties
who may be or may hereafter become primarily or secondarily liable for the
repayment of the indebtedness evidenced by the Notes.
The execution and delivery hereof shall not constitute a
novation or modification of the lien, encumbrance or security title of the
Mortgage, which Mortgage shall retain its priority as originally filed for
record. Mortgagor expressly agrees that the Mortgage remains in full force and
effect and that Mortgagor has no right to setoff, counterclaim or defense to the
lien granted thereby.
This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina without regard to
principles of conflict of laws.
This Agreement shall be binding upon and inure to the benefit
of any assignee or the respective successors and assigns of the parties hereto.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute any of such counterparts.
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The laws of South Carolina provide that in any real estate
foreclosure proceeding a defendant against whom a personal judgment is taken or
asked may within thirty days after the sale of the mortgaged property apply to
the court for an order of appraisal. The statutory appraisal value as approved
by the court would be substituted for the high bid and may decrease the amount
of any deficiency owing in connection with the transaction. THE UNDERSIGNED
HEREBY WAIVE AND RELINQUISH THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH
BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF
ANY APPRAISED VALUE OF THE MORTGAGED PROPERTY.
IN WITNESS WHEREOF, this instrument
has been executed under seal by the parties hereto and delivered on the date and
year first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
MORTGAGEE:
/s/ Xxxxx X. Xxxxx WACHOVIA BANK, N.A.
------------------
(Witness)
By: /s/ R. Xxxx Xxxxxxxx, Jr.
-------------------------
/s/ Xxxxxxxxx Xxxxx Its: Vice President
------------------- --------------
(Witness)
MORTGAGOR:
/s/ Xxxxxx X. Xxxxxxxx SEA PINES ASSOCIATES, INC.
----------------------
(Witness)
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
/s/ Xxxxxx Xxxxx Its: Chief Executive Officer
---------------- -----------------------
(Witness)
(CORPORATE SEAL)
SEA PINES COMPANY, INC.
/s/ Xxxxxx X. Xxxxxxxx
----------------------
(WITNESS)
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
/s/ Xxxxxx Xxxxx Its: President
---------------- ---------
(Witness)
(CORPORATE SEAL)
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STATE OF SOUTH CAROLINA
PROBATE
COUNTY OF BEAUFORT
PERSONALLY appeared before me the undersigned witness, who, being duly sworn,
says that (s)he saw Xxxxxxx X. Xxxxxxxx, Chief Executive Officer of Sea Pines
Associates, Inc. sign the foregoing instrument, and that (s)he with the other
witness named above witnessed the execution and delivery thereof as the act and
deed of the said corporation.
/s/ Xxxxxx Xxxxx
----------------
(Signature of Witness)
SWORN to before me this 20th
day of November, 2002.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public,
State of South Carolina
My commission expires: March 9, 2004
[Notarial Seal]
STATE OF SOUTH CAROLINA
PROBATE
COUNTY OF BEAUFORT
PERSONALLY appeared before me the undersigned witness, who, being duly sworn,
says that (s)he saw R. Xxxx Xxxxxxxx, Senior Vice President of Wachovia Bank,
N.A., sign the foregoing instrument, and that (s)he with the other witness named
above witnessed the execution and delivery thereof as the act and deed of the
said Wachovia Bank, N.A.
/s/ Xxxxx X. Xxxxx
------------------
(Signature of Witness)
SWORN to before me this 25th
day of November, 2002.
/s/ Xxxxxxxxx Xxxxx
-------------------
Notary Public,
State of South Carolina
My commission expires: June 24, 2006
[Notarial Seal]
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STATE OF SOUTH CAROLINA
PROBATE
COUNTY OF BEAUFORT
PERSONALLY appeared before me the undersigned witness, who, being duly sworn,
says that (s)he saw Xxxxxxx X. Xxxxxxxx, President of Sea Pines Company, Inc.
sign the foregoing instrument, and that (s)he with the other witness named above
witnessed the execution and delivery thereof as the act and deed of the said
corporation.
/s/ Xxxxxx Xxxxx
----------------
(Signature of Witness)
SWORN to before me this 20th
day of November, 2002.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public,
State of South Carolina
My commission expires: March 9, 2004
[Notarial Seal]
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