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EXHIBIT 10.45
NOTE
US $6,600,000 Columbia, South Carolina
April 17, 1997
1. FOR VALUE RECEIVED, the undersigned, Resource Bancshares Mortgage
Group, Inc., a Delaware corporation, (hereinafter called "Maker"), promises to
pay to the order of UNUM Life Insurance Company of America, a Maine corporation,
(hereinafter called "Holder"), at such place and in such manner as Holder may
designate in writing, the principal sum of Six Million Six Hundred Thousand
Dollars (US $6,600,000), together with interest on the unpaid principal balance
from the date hereof as hereinafter specified.
2. From and after April 17, 1997 (the "Closing Date"), interest,
computed on the basis of a three hundred sixty (360) day year composed of twelve
(12) thirty (30) day months, shall accrue at the rate of eight and seven
hundredths percent (8.07%) per annum. Interest only from the Closing Date
through the last day of the month in which the Closing Date occurs shall be
payable on the first day of the next month following the Closing Date; provided
that if the Closing Date occurs after the fifteenth (15th) day of a month, the
interest which would accrue, based on the actual number of days, through the end
of such month shall be payable in advance on the Closing Date. Thereafter, the
unpaid principal and interest shall be due and payable, computed on the basis of
an amortization period of three hundred (300) months (hereinafter called the
"Amortization Period"), in one hundred and nineteen (119) consecutive monthly
payments of Fifty One Thousand Two Hundred Forty Six and 30/100ths Dollars (US
$51,246.30) each, on the first day of each month beginning on June 1, 1997, (the
first day of the second month following the Closing Date). Such monthly payments
shall continue until all obligations of Maker hereunder have been paid in full;
except that, in any event, all obligations of Maker hereunder shall be fully
paid, and all remaining principal and interest shall be due and payable, on the
first day of May, 2007 (hereinafter called the "Maturity Date").
3. As more fully provided in the Mortgage and Security Agreement
hereinafter referred to, Holder may condition its consent to any sale,
assignment, encumbrance or other disposition of title to the mortgaged property,
upon payment of a transfer fee or upon an increase in the interest rate of this
Note to the "Index Rate", (as hereinafter defined). Upon and after any such
change in interest rate, the amount of each monthly payment hereunder shall be
increased to an amount sufficient to amortize the then unpaid principal balance
of this Note in equal monthly payments over the remainder of the Amortization
Period. Index Rate shall mean one hundred and twenty five percent (125%) of the
average of Xxxxx'x corporate bond yield average for an Aa Industrial Bond as
published monthly in "Xxxxx'x Bond Record" for the three (3) months prior to the
month of Holder's written consent. The provisions of this paragraph shall be
self-executing without the need for any modification or amendment to this Note;
provided, however, Holder may, at its sole option, require that Maker execute or
provide documents confirming any adjustment in the interest rate, including
without limiting the generality of the foregoing, at the expense of Maker,
endorsements to the title insurance policy and/or opinions of counsel
satisfactory to Holder.
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4. Payments due under this Note shall be paid by wire transfer or other
immediately available funds to the bank account and pursuant to instructions to
be designated by Holder. At the option of Holder, payments may be made at the
offices of UNUM Life Insurance Company of America, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000-0000, Attn.: Mortgage Accounting & Administration.
5. Maker acknowledges that late payment to Holder will cause Holder to
incur costs not contemplated by the loan evidenced by this Note (the "Loan"),
the exact amount of such costs being difficult and impracticable to assess. Such
costs include, without limitation, processing and accounting charges and the
potential costs to be incurred as a result of Holder's frustration and inability
to meet its other commitments. Therefore, if any payment under this Note is not
paid on or before the fifth (5th) day of the month during which the payment is
due, then Maker shall pay to Holder a late charge of five percent (5%) of such
payment which shall be immediately due to Holder as liquidated damages for
failure to make prompt payment and to compensate Holder for such costs. If any
payment under this Note is not paid on or before the fifteenth (15th) day of the
month during which the payment is due, or upon the occurrence of any "Event of
Default", as defined in the "Loan Documents" (as hereinafter defined) in the
performance or observance of any of the terms or agreements contained in any of
the Loan Documents, then the entire principal balance of this Note shall bear
interest from the due date of such late payment until such late payment is paid,
or from the date of such Event of Default until such Event of Default, is fully
cured, at a rate of five percent (5%) per annum in excess of the interest rate
then applicable hereunder (the "Default Rate"). The late charge and excess
interest shall be due and payable immediately without demand.
The parties agree that the late charges represent a reasonable sum
considering all of the circumstances existing as of the date of this Note and
represents a fair and reasonable estimate of the costs that Holder will incur by
reason of late payment. The parties further agree that proof of actual damages
would be costly and inconvenient. Acceptance of any late charges and/or excess
interest shall not constitute a waiver of the default with respect to the
overdue amount, and shall not prevent Holder from exercising any of the other
rights and remedies available to Holder. The late charges shall be due and
payable immediately without demand and shall be secured by the "Loan Documents",
as defined in Section 7, below.
6. From and after the date hereof, Maker shall not have any right,
except as otherwise specifically provided, to prepay all or a portion of the
principal balance of this Note until May 1, 1999. From May 1, 1999 to April 30,
2007, Maker shall have the right to prepay all, but not merely a portion of the
principal balance of this Note, on any payment date thereafter and with sixty
(60) days' prior written notice to Holder, and upon payment of the "Prepayment
Premium" (as hereinafter defined). This Note, together with the "Prepayment
Premium", shall be due and payable at the time provided in said notice.
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The "Prepayment Premium" is that amount which, if invested
with the outstanding principal balance in U.S. Treasury Securities maturing at
or nearest the Maturity Date, would return to Holder the discounted present
value [utilizing a discount factor equal to the "Reinvestment Rate" (as defined
below)] of the stream of payments under this Note.
The "Reinvestment Rate" shall be the yield on the current
coupon U.S. Treasury Security having a maturity date closest to (before, on or
after) the Maturity Date, as reported in The Wall Street Journal or similar
publication on the 5th business day preceding the date of payoff; provided,
however, that if the period between the maturity date of such U.S. Treasury
Security and the Maturity Date exceeds four (4) months, the average of the
yields on the two (2) current coupon U.S. Treasury Securities having maturity
dates next preceding and following the Maturity Date shall be used to compute
the Reinvestment Rate. If there are two (2) or more such U.S. Treasury
Securities with the same maturity dates, the one whose yield is closest to the
interest rate on this Note shall be used.
Maker acknowledges and agrees that Xxxxxx is making the Loan
evidenced by this Note in consideration of the receipt by Holder of all interest
and other benefits intended to be conferred by this Note and the other "Loan
Documents" (as hereinafter defined) and if payments of principal are made to
Holder prior to the regularly scheduled due date of such payments, for whatever
reason (whether voluntarily or involuntarily as a result of (a) Holder's
acceleration of the Loan on account of an Event of Default under this Note or
the Loan Documents, (b) the exercise of Holder's rights under "due-on-sale,"
"due-on-encumbrance" or similar provisions in the Loan Documents, (c) in
connection with any bankruptcy proceeding involving the "Property" (as
hereinafter defined) or (d) in connection with any foreclosure of the Property,
whether judicial or non-judicial), Holder will not receive all such interest and
other benefits and may incur additional costs.
For these reasons, and to induce Holder to make the Loan,
Maker expressly waives any right to prepay this Note except pursuant to this
Section 6 and agrees that except in cases where this Note is prepaid from
casualty insurance proceeds or condemnation awards, all other voluntary and
involuntary prepayments will be accompanied by the premium specified above. Such
premium shall be required whether payment is made by Maker, anyone on behalf of
Maker, or by the purchaser at any judicial or non-judicial foreclosure sale, and
may be included in any bid by Holder at such sale.
By its initials appearing below, Maker acknowledges that: (i)
it is a knowledgeable and sophisticated real estate investor; (ii) it fully
understands the effect of the provisions of this Section 6; (iii) the making of
the Loan by Holder at the interest rate and other terms set forth in this Note
is sufficient consideration for the inclusion of the provisions in this Section
6; and (iv) Holder would not make the Loan on the terms set forth herein without
the inclusion of such provisions. Maker also acknowledges that the provisions of
this Section 6 limiting the right of prepayment and providing for payment of the
premium specified above were independently negotiated and bargained for, and
constitute a specific, material part of the consideration given by Maker to
Holder for the making of the Loan.
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MAKER'S INITIALS
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7. This Note is secured by a Mortgage and Security Agreement of even
date herewith, ("Mortgage") encumbering certain real and personal property
(specifically excluding, however, any personal property owned by Maker and
located at or upon the Property and used by Maker in its day-to-day business
operations and affairs) (the "Property") located in Richland County, State of
South Carolina (the terms and provisions of which are incorporated herein by
this reference), and by any other instruments, now or hereafter executed by
Maker in favor of Xxxxxx, which in any manner constitute additional security for
this Note, and Maker has also given to Holder in connection herewith an
Assignment of Rents, Leases, and Other Benefits of even date herewith (all of
which are herein collectively called the "Loan Documents").
8. It is agreed that time is of the essence in the performance of all
obligations hereunder and under the Loan Documents. If Maker shall fail to make
any payment hereunder when due, or upon the occurrence of an Event of Default in
the performance or observance of any of the terms, agreements, covenants or
conditions contained in the Loan Documents, then, or at any time thereafter, the
entire principal balance of this Note, irrespective of the Maturity Date
specified herein, together with the then accrued interest thereon, and to the
extent permitted by law, the Prepayment Premium, shall, at the election of the
Holder hereof, and without notice of such election, become immediately due and
payable and the entire principal balance with accrued interest thereon shall
thereafter until paid bear interest at the Default Rate.
9. All makers, endorsers, guarantors and sureties hereof jointly and
severally waive presentment, notice of protest, protest, demand for payment,
notice of dishonor, notice of intent to accelerate, and notice of acceleration;
and they also jointly and severally hereby consent to any and all renewals,
extensions or modifications of the terms hereof, including the terms or time for
payment; and further agree that any such renewal, extension or modification of
the terms hereof or time for payment or of the terms of any of the Loan
Documents or the release or substitution of any security for the indebtedness
evidenced hereby or any other indulgences shall not otherwise affect the
liability of any of said parties for the indebtedness evidenced by this Note;
and further agree that the Holder hereof shall not be required first to
institute suit or exhaust its remedies hereon against Maker or others liable or
to become liable hereon or to perfect or enforce its rights against them or any
security therefor. Any such renewals, extensions or modifications may be made
without notice to any of said parties.
10. This Note shall be the joint and several obligation of all makers,
endorsers, guarantors, and sureties, and shall be binding upon them and their
successors and assigns and shall inure to the benefit of the successors and
assigns of Holder. All makers, endorsers, guarantors, and sureties hereof agree
jointly and severally to pay all costs of collection incurred by Xxxxxx,
including reasonable attorneys' fees and costs: (a) in the exercise of remedies
provided under this Note and the Loan Documents and (b) in any state insolvency,
receivership or federal bankruptcy proceeding to which the Maker is a party,
whether prior to or after confirmation of a plan of reorganization. In addition
to the foregoing entitlement to attorney's fees and costs, Holder shall be
entitled to its attorneys' fees and costs incurred in any post-judgment
proceedings to collect or enforce any judgment or order relating to this Note or
the other Loan Documents. This provision is separate and several and shall
survive the merger of this provision into any judgment.
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11. Any forbearance of Holder in exercising any right or remedy
hereunder or under the Loan Documents, or otherwise afforded by applicable law,
shall not be a waiver of or preclude the exercise of any right or remedy. The
acceptance by Holder of payment of any sum payable hereunder after the due date
of such payment shall not be a waiver of Holder's right to either require prompt
payment when due of all other sums payable hereunder or to declare a default for
failure to make prompt payment.
12. This Note shall be governed by the laws of the State of South
Carolina, except to the extent that federal law may apply.
13. All agreements between Maker, and Holder are expressly limited so
that in no event whatsoever shall the amount paid or agreed to be paid to Holder
for the use, forbearance or detention of the money to be advanced hereunder in
accordance with the Loan Documents exceed the highest lawful rate permissible
under applicable law governing the charging of interest which is applicable to
the subject obligation, it being the intent of Holder and Maker in the execution
hereof and of the Loan Documents to contract in strict accordance with
applicable usury laws. If any obligation under this Note or under any Loan
Document shall involve transcending the usury limit prescribed by applicable
law, then ipso facto the obligation to be fulfilled shall be reduced to such
limit, and if from any circumstance Holder shall receive as interest an amount
which would exceed the highest lawful rate allowable under applicable law, such
amount which would be excessive interest shall be applied to the reduction of
the unpaid principal balance due hereunder and not to the payment of interest,
or if such excessive interest exceeds the unpaid principal balance, the excess
shall be refunded to Maker and Maker hereby agrees to accept such refund. This
provision shall control every other provision of all agreements between Maker
and Holder.
14. Maker agrees that the "due-on-sale" provisions of Article 1.11 of
the Mortgage and Security Agreement are incorporated herein by reference as if
fully set forth herein.
15. AFTER CONSULTATION WITH COUNSEL, MAKER XXXXXX KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT MAKER MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY LITIGATION BASED UPON THIS NOTE, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF
HOLDER AND ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER
MAKING THE LOAN.
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IN WITNESS WHEREOF, Maker has executed this Note as of the date first
above written.
MAKER
RESOURCE BANCSHARES MORTGAGE GROUP, INC.,
WITNESS: A DELAWARE CORPORATION
BY:
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NAME:
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ITS:
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